Over the past year or so, an increasingly large number of people have come to me with the suggestion that I write an article about various ADA and Section 508 related lawsuits going on around the country. “Lawyers ain’t my beat,” I’d tell them. “And, in fact, I tend to agree with the plaintiffs in such matters as I honestly believe that ADA, 508, CVAA and other legislation designed to protect the rights of people with disabilities should be enforced to the fullest extent of the law. However, I accept that the best path to this goal is not through aggressive lawsuits but, rather, constructive engagement and community participation.
Over the past month or so, I learned that there is more than one kind of web accessibility lawsuit and that NFB is not the worst offender in this space. I’ve criticized NFB on this blog and BlindConfidential before it and will continue to do so until they get technology right but, compared to the law firm, non-profit and one specific accessibility contract shop assaulting corporate America with a blitzkrieg of lawsuits in the US District Court for the Western District of Pennsylvania and a number of other locales around America, NFB legal actions seem relatively benign. That good old Gonz Blinko would actually believe that NFB are actually moderates on the legal spectrum surprises even me.
Constructive Engagement: The Right Way To Affect Change
A number of years ago, my friend Laura Legendary wrote a blog article titled, “Tools Of Choice In The Fight For Equal Access: Sledgehammer Versus Constructive Engagement” in which, without naming names, she called out some of the ideas I and some of my accessibility activist pals had argued with her about. Then and to a lesser extent today, I found the legal landscape regarding enforcement of ADA and other regulations designed to protect the civil rights of people with disabilities to be terribly frustrating; we had the laws on the books but the Obama administration was refusing to enforce them.
At the same time, I found that the NFB strategy reminded me of the mobsters I grew up around in New Jersey back in the sixties and seventies, NFB shows up with three options, “you can give us a huge contribution and we’ll describe you as an accessibility good guy no matter how you behave (Google, Oracle and Uber come to mind), you can hire an expensive accessibility contractor or we will sue you in federal court.” I looked at the long term results of NFB actions and found that Amazon and others with whom NFB settled led to zero actual accessibility improvements in the technologies sold by the defendants. Thus, given that the NFB strategy was an abject failure, I assumed that the only path to an accessible future would require that Attorney General Holder would take up the cause of enforcing our civil rights, something that never actually happened.
Then came Laney Feingold and an actual process for constructive engagement that has delivered consistently excellent outcomes. I do not know Laney personally and we’ve only recently been introduced by email by a mutual friend. What I do know about Attorney Feingold’s work is that, in Bank Of America, Wells Fargo and, most recently, Denny’s, her projects result in massive positive changes on real world web sites at huge corporations. As far as I can tell, none of Laney’s projects in this area ever ended in litigation but, rather, all of the parties involved worked together to deliver a truly accessible experience to users of the web sites in which her process of constructive engagement was used to affect change.
I’m hoping to interview Laney sometime in the near future and will write an entire article about her and her process sometime later this year. But, based entirely on my observations of her accessibility projects from the perspective of a distant outsider, she seems to have invented a model that actually works and I’m now convinced that her way is the best path for the future.
Introducing The ADA Troll Protagonists
Robert Jahoda and Michelle Sipe
I don’t know who Robert Jahoda is but, based on public records, he is suing Foot Locker and the National Basketball Association for having an unspecified set of accessibility problems on their web sites. His case against Foot Locker mentions a half dozen different web sites owned by the footwear giant so I must assume he’s obsessed with sneakers as his legal claim states that he’s a customer of all six of them. I’ll also assume he’s a big basketball fan and, I agree, I’ve had problems with NBA technology as well.
Meanwhile, a woman named Michelle Sipe is suing Toys ‘R’ Us and Patagonia for accessibility issues as well. I find it to be a credible argument that she probably has tried to use both of the sites in her complaint and likely found some things frustrating or even impossible to use.
Based on what we will learn from the discussion of the Mazzio’s case later in this article, I’m fairly certain that Robert and Michelle were approached by Carlson-Lynch after the law firm had started its legal assault on the four companies mentioned in these suits. I don’t think Robert and/or Michelle are bad people, they probably got a call from Carlson and were offered a chunk of the $175,000 demanded in the proposed settlement agreements and took the bait and joined the lawsuit as named plaintiffs.
All four of these cases and more were filed in the US Federal District Court for the Western District of Pennsylvania and over the rest of 2016 and 2017, many other attorneys have taken up this sort of legal assault regarding ADA and web sites elsewhere in the US.
What Do These Cases Have In Common?
Carlson Lynch Sweet & Kilpela LLP
In the initial cases I observed, the law firm representing the plaintiffs is Carlson Lynch Sweet & Kilpela LLP’ based in western Pennsylvania. And, if you download the Zip file containing the public information, you will notice that all of the suits mentioned above are identical to each other with the minor differences being in the names of the plaintiffs and defendants and the specific web sites in dispute. As a matter of shorthand, I will use the name “Carlson” throughout the rest of this article to refer to this unethical law firm.
Bureau Of Internet Accessibility
In the original version of this article published in winter 2016, I described BOIA as being in cahoots with Carlson-Lynch in some if not all of these cases. Roughly eighteen months later, we have seen zero evidence that BOIA has received a single contract resulting from the trolling lawsuits. We had assumed their involvement because they were named as a preferred vendor by Carlson-Lynch in letters threatening small businesses with ADA lawsuits regarding their web sites. Now, we are even uncertain how or why BOIA was mentioned by Carlson-Lynch as we can find no records of them even having had a conversation.
Furthermore, we have found zero evidence that BOIA has gotten a single contract resulting from these lawsuits and threats thereof. We have discussed this matter with some prospective BOIA clients and were told that BOIA is willing to provide a signed a legal statement that they are not involved with Carlson-Lynch and/or any other ADA trolling law firm. This is not the case for Criterion508.
The other thing these cases have in common is that many of the early defendants were been presented with identical proposed settlement agreements that, in addition to BOIA, recommend an accessibility contract company called Criterion 508 Solutions. Criterion 508 does have a laundry list of clients on its site and has definitely done some accessibility work in the past but, when I called top accessibility managers at a number of the clients listed on the Criterion 508 site, I was told that the only work for which they have a good reputation is doing PDF and other document remediation and that they’ve no reputation whatsoever regarding Internet accessibility. Digging a bit deeper, I talked to people at some of the top accessibility contract service companies and none of them can remember having ever come up against Criterion 508 in a competitive bid process. I’m not saying that Criterion 508 does poor work, I’ve no evidence of that but I’ve no evidence they’ve done any good work either. What we have learned, however, is that they are working with Carlson to use lawsuits and threats thereof as a marketing tool for their business. In my mind and I hope that of my readers as well, this is an entirely unethical way of selling contract services and it will not result in improved accessibility for those of us who actually need it.
In the year and a half since this article was first published, we have seen evidence that Criterion508 is getting contracts from victims of Carlson-LYnch lawsuits and that the work they’re providing is downright bizarre. A VPAT is a kind of document used by companies who wanted to sell technology products to the US federal government and even in the government sector under the new rules for Section 508 Refresh say it has little or no standing. Why then would a mom and pop retail outfit who does no business with the feds need such a thing? Anyone who thinks a VPAT is appropriate for a small business doing zero sales to the federal government is somewhere between incompetent and delusional.
The Carlson Strategy
Threaten First, Ask For Accessibility Later
What Do The Lawsuits Demand?
Based upon the proposed settlement agreements that I’ve read and the specifics of the lawsuits that have been filed, hence, are in the public record, each of these suits are demanding:
- That the defendants (Foot Locker, Patagonia, NBA and Toys ‘R’ Us in the examples I have open in Preview right now) must pay the plaintiffs (Robert, Michelle, etc.) approximately $175,000 to pay to have someone (BOIA or Criterion 508) periodically run an automated accessibility test tool against the offending web site.
- That the defendants use an accessibility contractor “approved by the plaintiffs” effectively insisting that all of this work be done by Criterion 508 or some other vendor collaborating with the law firm.
- That defendants pay “approved contractor” to perform accessibility audits for what seems to be an indefinite period into the future, costing what is apparently whatever the contractors choose to charge.
- That the allegedly offending web sites are responsible for the accessibility of third party software that they may have embedded on their sites. The proposed settlement agreements includes holding the defendants responsible for code from Google and a number of other companies not party to the suit. If Carlson wants to get web accessibility at Google, maybe it’s Google whom they should sue.
There are a number of other demands, some of which I agree with like ensuring that defendants’ web sites be WCAG 2.0 AA compatible. But, while I agree with this goal, the tactics used by Carlson, et al and Criterion 508 to achieve this goal is the wrong way to affect change. I’ll even go so far as to say that this is a pure shakedown of otherwise respectable US corporations that is being perpetrated by a hyper-aggressive law firm and a low profile, low end and mostly unknown contract service business.
The Counter Suit
In at least one case in which Carlson and Criterion 508 have threatened a lawsuit, the company on the receiving end of the suit filed a counter complaint and, from the text in the public record involving this case, we can learn just how insidious this strategy really is. The first company with enough courage to counter sue that I was able to find is called Mazzio’s LLC who has filed a counter suit in the Federal District Court For The Northern District Of Oklahoma against the law firm of Carlson, et al and names each of the partners in the Pennsylvania firm as individual defendants and includes a NY legal group called KamberLaw, LLC as well. It is because of Mazzio’s counter-suit that so much of what I wrote above came into the public record as their claim and supporting documents, including the emails from Carlson, the proposed settlement agreement and related documents are all available online but aren’t exactly easy to find. It’s all in the .zip file that you can download and read.
Mazzio’s is an Italian restaurant, delivery and catering service in Tulsa, Oklahoma. Taking a quick look at its web site, I found a few accessibility problems but nothing that would prevent a blind person from enjoying the full benefit of their services. The problems I found included a few unlabeled images and some other minor stuff that a little contract business like our 3 Mouse Technology would probably fix for a few hundred bucks or any of the larger powerhouse accessibility contractors could probably have tested and fixed in a matter of a few hours. At most, I’d think that Mazzio’s could have its site made perfectly accessible for no more than a few thousand dollars by any credible contractor in this field.
The Mazzio’s counter suit claims:
- On January 4 of 2016, Mazzio’s received a letter from the law firm Carlson, et al and KamberLaw (the defendants in the counter suit) asserting that they represented an individual or group thereof with a disability who could not use the Mazzio’s web site, thus constituting a violation of ADA.
- The letter from the defendants did not disclose which people they represented, just that some unnamed “people with disabilities” were making some demands. I think this one speaks to running a web testing tool as a web crawler that then auto generates a letter from the law firm as, quite obviously, no individual had made this claim.
- The defendants offered a settlement agreement to which Mazzio’s could either agree or face a lawsuit. Plain and simply, this is a shakedown at this point, no named plaintiffs and a request for a lot of money “in lieu of litigation.”
- Mazzio’s has repeatedly requested that Carlson provide the name of an actual plaintiff and received a response that said that a plaintiff would be named only after negotiations had reached a point where they (Carlson) had deemed such was appropriate. I’m no lawyer but I do understand the English language pretty well and my reading of this document suggests the Carlson is fishing for lawsuits without a single blind or otherwise vision impaired plaintiff involved. Carlson seems to be using the questionable BOIA testing tool to generate lawsuits and they’ll find a plaintiff later. This is beyond unethical, it’s probably an illegal harassment of a business and an unacceptable practice if increasing accessibility is one’s true goal.
- Mazzio’s asserts that, because at this time, there is in fact no specific federal standard defining what is and what is not required regarding a web site under ADA, that being held to an undefined standard is impossible (something to which I must also agree). Furthermore, Mazzio’s asserts that Carlson intentionally wrote their threat letter with the intention of making this fact ambiguous in order to mislead Mazzio’s into settling. Again, this is an example of using a law firm to bully and shakedown what seems to be an honest business trying to do it’s best in this situation.
- Because Carlson refused to provide the name of a plaintiff, they may be threatening to sue Mazzio’s fraudulently as there is no evidence that Carlson has been retained by a plaintiff making a claim in this case. Which is to say, no blinks were involved, just a law firm and an automated web testing tool of dubious reputation.
- Mazzio’s asserts that, as their is no actual plaintiff, that under Oklahoma law the letter sent threatening this action and offering a settlement agreement asking Mazzio’s to pay a real lot of money is, indeed, fraud. I’m not a lawyer and haven’t even set foot in Oklahoma in more than 30 years, so can’t speak to the validity of a detail in such but if it looks like a duck and it walks like a duck…
I could add more from the Mazzio’s counter suit but you can read it by downloading this Zip file, everything to do with the Mazzio’s case is in a subfolder in this file
What is clear both from reading the suits brought by Carlson and in Mazzio’s counter-suit is that ADA Trolls are making a mess of the accessibility landscape, are operating what is tantamount to a “protection racket” and that they’re doing it to a countless number of businesses around the nation in order to profit themselves and Criterion 508.
What Can We Do To Stop This?
On Friday, my good friend Sina Bahram, head of Prime Access Consulting made an offer on Twitter to provide anyone on the receiving end of one of these ADA trolling letters with a free one hour consultation. I would expect that any credible accessibility consulting company would do the same and, while I’ve verbals from a number of people atop other excellent accessibility consulting companies to do the same, this article is being written as they work out their internal policies on these matters and I cannot make any announcements regarding such here but will in the coming weeks when other companies join Sina by making a similar offer.
I am willing to help organize an amicus (friend of the court) brief on behalf of true experts in the field of accessibility who may be willing to sign onto such a thing. In the past, I’ve organized a brief in Apple v. Microsoft and in Lotus v. Borland, lawsuits worth billions of dollars. In those, I organized more than 100 top computer scientists from around the world to assert that user interface copyrights were invalid. We won that issue in the US Supreme Court. I’m no lawyer but I can be an organizational monster.
Please, if you’ve ideas on how to help stop this trolling, include them in the comments section or send them to me via the contact form on this site.
What To Do If You’re Being Harassed By Carlson, et al
The first thing I would recommend is writing to me via the contact form on this site so we can add your company’s name to the list of those being harassed by Carlson and Criterion 508. I can’t do much in terms of legal work but I think it is important that we show the world just how many companies are being harassed, perhaps fraudulently if the claims made by Mazzio’s Italian Restaurant are correct. At this point, we do not know the full extent of Carlson’s attacks. Estimates run between hundreds to thousands of such threat letters have been sent so far. If you’ve received one, you’re not alone and there are people out here willing to help you work to a successful conclusion without being forced to accept the demands of these trolls.
Next, if you have true accessibility problems, find yourself a really good remediation company. There are a number of excellent accessibility contract service businesses including Deque Systems, Prime Access Consulting, SSB]6 , The Paciello Group (TPG) and WebAIM [who, do outstanding work on a daily basis, have long track records and can and will be able to deliver excellent outcomes. If you need such services for your company or organization, I recommend looking into all of these groups as each brings its own set of specific skills and one or more of them will be able to provide your group with the results you need if, indeed, you actually need formal remediation services.
Finally, if you can afford to, fight back as Mazzio’s Italian Restaurant is doing. I’ve included all of the public records we could find regarding the Mazzio’s case against Carlson, et al in the .zip which should make it a bit easier on your lawyers as Mazzio’s has done some excellent work from which your legal team can crib. I don’t know anything about Mazzio’s other than what I’ve read in their legal documents. If you live in or near Tulsa, please patronize their business, they’re fighting a tough legal battle against ADA trolls and deserve your support.
Carlson and Criterion 508 are using ADA as a tool to attempt to use the legal system to extort large sums of money from businesses who may have some to many accessibility problems on their web sites. I don’t excuse the offending web sites for being inaccessible but I am entirely confident that the path to success in accessibility is not paved in legal documents. If the Mazzio’s claims are true, something I believe is the case, Carlson is using fraudulent tactics to bully companies into a large cash settlement that may not result in anyone actually improving their accessibility. Because of the Mazzio’s case, we’ve been able to see Carlson’s tactics but we’ve no public sources that show us the interactions between Carlson and a company who may attempt a negotiated settlement to avoid litigation. If you’ve access to any documents, emails or other correspondence related to this case, keep in mind that I’m the guy who ran a blog with the word “Confidential” in its name and that I’ve never revealed a source.
I find Carlson and Criterion 508 to be acting unethically and I believe they are doing more to damage any possibility of an accessible future than anything else. A “shoot first” policy causes immediate distrust and forces those of us working in the field to be held to far higher levels of secrecy regarding our clients, something that makes a public beta period and showing off other pre-release technology difficult to impossible.
Fighting for an accessible future is hard; doing so with maniacs like Carlson and Criterion 508 makes it harder for everyone who actually cares about getting it right.