March 28, 2018

Due Diligence: Mitigating the Risk of Website Accessibility Claims

Lawsuits under the Americans with Disabilities Act premised on the inaccessibility of websites & apps have exploded in recent years – and their potential settlement & remediation costs can be significant.  This recent blog from Fredrikson & Byron’s Steve Helland has some due diligence tips for prospective buyers to help identify a seller’s websites & apps that might be vulnerable to ADA litigation.

This excerpt identifies questions that a buyer should ask as part of the diligence process:

– 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?

– 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?

– Does the company have an accessibility policy?

– 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.

The blog also suggests potential language addressing website accessibility for inclusion in a purchase agreement, and lays out steps that can be taken to mitigate litigation risk post-closing.

John Jenkins