The Balancing Act:  Ethical and Zealous Representation When Collaborating for Equal Access Without Litigation

This is being provided in a rough-draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.
ATTENDEE: Welcome everyone to the balancing act ethical and zealous representation when collaborating for equal access without litigation.  We are plaintiffs side attorneys, that's on my right.  We are a defense side attorney on my left.  And I am in house counsel.  Each of us will give our perspective on certain questions related to this topic so you can compare our views.  I'm Morissa Fregeau and I'm in house counsel and my role is client as a corporation is so very different than Tim and Christine.  I have been in house counsel for 20 years.  And I am a white woman with long silver hair which will tell you that it's been 20 years.  Before I was an attorney, before I went to law school, I was a social worker and have felt that a lot of my systematic changes that I've been able to influence have been while I was in house, as opposed to when I was a social worker. So Tim, do you want to introduce yourself?
TIM ELDER:  Sure.  Hi, I am Tim Elder.  I am a white male with less hair than I would like.  And a blue shirt. I'm the principal attorney at the TRE Legal Practice.  We're a small form that focuses on the rights of the blind and other people with disabilities to live in the world.  Our practice often involves technology access impact cases.  And Christine?

KRISTINA LAUNEY:  Hi, everyone. I'm Kristina Launey. I am in private practice with the law firm Seyfarth Shaw based in Sacramento, California. I am also a white woman. I don't have gray hair yet, although I still feel like I've aged tremendously since lockdown. I have been doing employment law and disability access law for about 20 years now.  And I started as a California legislature before I went into private practice, which gives me sort of a unique perspective on our laws and how they're draft indeed California and nationally. So thank you for having us all.  All right.  On our slides, oh, we can't forget this slide. Even though we're all lawyers, this is not legal advice.  This is purely informational.  I know a lot of you all are lawyers as well, so you know the drill. Kicking it off.  

MORISSA FREGEAU:  Christine, can you tell us some suggested best practices when initially handling claims for denial of equal access?  

KRISTINA LAUNEY:  Man, we should start with you, Tim. You initiate it on your side.  

TIM ELDER: .  Sure.  Christine and I actually got to do a presentation.  I think Chris law is in the room. We had a fun presentation where Christine and I compared notes and offered best practices. You should check out Chris law's publication on best practices as well. There's a lot we could talk about in terms of best practices. But there's a couple to highlight that I really want to bring extra attention to. The first one is sort of the due diligence component.  I know on the plaintiffs' side we often are in a rush. There's you're trying to settle cases, there's a lot of cases coming through the door and you're trying to do what you can to efficiently get the job done.  And if you overwork a case that there can be problems.  And there's an incentive to be as efficient as you can.
That being said, ethical obligations and there's also some of the things you might want to think about. So, for example, in access cases, I really like to try to front load an expert review of technical issues or standards that may have been violated.  And I approach that because in technology cases in particular, evidence spoils very quickly.  And not in a way that anyone can control or get back or at least it's difficult and expensive to try to get it back. You might see a website or a piece of software and it exists at one point on Monday, and it gets updated on Thursday and looks completely different on Friday.  And there's no way to get it back. It's like a building that just continuously gets remodeled. You can't easily go back in time to reinspect the old building, even though the wonders of e discovery and electronic records.  I often suggest a progressive approach to preservation and expert review. Where you also have things like Google docs where people are collaborating but it's all in real time where there's no versioning anymore. It's this document that keeps overwriting itself.  

So you can front load a preservation letter along with a demand. It's always a good idea.  And then you can do some early discovery for the documents you think that might disappear.  A site inspection with an expert is a good idea early on.  And this would be true for any, employment case, Title II case, Title III case whatever. But you could also progressively do your investment. So you might have an expert look at something at one level for a demand level.  At another level for the complaint.  And then if it looks like the case is going to litigate in discovery, then you ramp that up.  So you can do, they sort of tailor the expert's review.  Maybe you don't have to do the full review in the beginning before you send the demand letter, but you can still have them do kind of a high level review and have them preserve the data they might want to look at later. So that's one.  Best practice I would highly recommend.  Kristine?
KRISTINA LAUNEY:  Thank you for going first, Tim.  I only do defense work and I defend companies when they get sued or approached with demands alleging in the context here, denial of equal access.  So usually it is Tim or someone in his position who is initiating.  And then I respond. So I do like it when I'm encountering someone like Tim who has done his or her due diligence on the front end.  It makes it a whole lot easier to come to it with my set of best practices, which are, first of all, if it's a lawsuit, for example, giving him a call rather than immediately following an answer or a motion to dismiss. Because we have a litigation that's been initiated because there is a problem that needs to be solved.  And if you jump straight to litigation, that quite often delays solving the problem in lieu of just going through the litigation process.  So seeing if we can come to some meeting of the minds, of what is the problem here, can we talk to each of our clients and figure out maybe we can solve the problem, rather than distracting everyone with litigation.  

Sometimes litigation is necessary, but quite often, especially in this area of the law, just getting to the heart of what the problem is and how we can solve it is going to be the most efficient and most effective to get to everyone's goals. If Tim hadn't done his due diligence, it would be harder for us to have that conversation right out of the gate, and harder for me to get my client's attention as well, to try to get to that goal. So I think that really is the best practice.  And from, I guess the big picture as well is to come to it with an open mind. Don't necessarily come to it thinking we're going to have to litigate and get a decision to effectuate whatever change the plaintiff is seeking as a result of that, and when the parties come to it from that perspective, I find it could be much more productive.
MORISSA FREGEAU:  Got lots of mics.  From my perspective as the person who receives the complaint or doesn't receive the complaint because we're trying to avoid a complaint, it really starts with knowing the law.  I think that as in house counsel, we wear many, many hats.  We wear them as a business partner, we wear them as counsel of many different laws and many different areas. But in this particular in this particular place, not only knowing the law, but understanding technology, and then cultivating your relationships with your business partners.  I think early on when I started doing, looking at digital accessibility, and it had been maybe three years, four years in at this point.  And I went to    I spoke at a global accessibility awareness day at the company I was at.  And I met somebody in the hall who said to me, oh, you're Morissa.  You used to scare the shit out of me.  I was like oh, no, why?
ATTENDEE: You're very scary.  

MORISSA FREGEAU:  He said because every time we would get on a call, you would be like why isn't it fixed yet.  I don't understand why it's not fixed yet.  And that was my sort of eye opening moment that I really needed to understand the technology better, so that I can understand why it wasn't done yet.  Or why it wasn't accessible yet.  And I think that was a really big turning point for me, and also being able to relate better to my business partners and become a partner in the remediation or whatever else it was that we were doing, to really learn to be a detective and ask questions.  And if I didn't understand something about technology, to know the people to ask so that if and when I do get a complaint in, I know who to go to.  And I know the right questions to ask.  So that's my best practice. 

KRISTINA LAUNEY:  And I will say that it's key.  I've worked with a lot of companies in my career and I've worked with a lot of very frustrated plaintiffs' counsel and agencies when it sometimes will take me months to figure out who the appropriate person to get an answer from within the company which can seem shocking.  But sometimes the person in Morissa's chair doesn't know and it can take a very long time and especially sometimes the bigger the company to figure that out.
TIM ELDER:  I think also on the plaintiff's side, in addition to due diligence, sharing as much detail as you can, so that Kristine and Morissa can do their job.  And reach the right people.  So whether it's a demand letter or even a pleading, we often try to want to hold back or keep things under wraps.  But I think it's in the client's best interest in most cases, to try to really tell the compelling story of why they couldn't access something and what it actually meant for them personally. There's a temptation to go to the boilerplate to say there was a denial of access and it denied them meaningful access to the goods and services or just, rote quotation from a statute.  

Which is not as helpful as well, this individual tried to get services for treating this medical services for treating this condition or something that's compelling and in the client's interest to disclose.  But really highlights where the breakdown happened.  I think even just a little bit of detail so that folks know where the pain point is for the problem, for the fix, and doing that early on in the demand letter and in the complaint can help facilitate a problem or a solution oriented conversation with your colleagues on the other side of the conversation.
MORISSA FREGEAU:  Thanks, Tim. I think that's a really good segue, because that's my pet peeve is to receive a complaint or a litigation complaint with no specificity in it. That is my one pet peeve, and it's very annoying to receive a litigation complaint like that.
KRISTINA LAUNEY:  I have a list of pet peeves, but that would be number one also.  Not only lack of specificity, but where you have a very bad copy and paste job. There was a case out of New York District Court and I'm forgetting I think it was an Apple case where the judge said live by the photocopier or die by the photocopier.  Not only are those form sorts of complaints we see, or form demand letters we see those a lot now where it says you violated the ADA and they just copy and pasted the name of the company in, they are so counterproductive because they put companies on the defensive quite often.  And even when they get a legitimate complaint sometimes they're suspicious.  So it's a pet peeve because it's counterproductive in so many ways and it takes away from some of the legitimate complaints, not to mention just causing that one matter to proceed so much more slowly.  I don't like seeing decisions like that because courts shouldn't have to decide things like that.  

TIM ELDER:  Yeah, I have some pet peeves.
[ Laughter ]

So you know, you hope that when you send a letter or file something that you will immediately engage in an open and candid dialogue about how do we solve this problem although that doesn't always happen. Even if plaintiff is open to that and very much wanting that, there can be mistrust.  People might have PTSD from a previous access litigation, who knows what happened.  But they often will not speak to me or the client, and they will try to unilaterally fix the problem to either move the case or increase the leverage in their legal position.  And it often is a bad fix.  Because it's not informed by the person with a disability or the expertise that they can bring to the table as a customer, consumer, or someone accessing service.  

And then some fix comes out and it's like oh, this doesn't work for XY reasons that if you would just talk to us about, we could have helped with this. So that's one pet peeve just when there's no conversation and then all you get back is yeah, we fixed it and we did XYZ but they didn't do ABC, which that makes it harder to get ABC because they might not have had to do XYZ if ABC had been sufficient.  So that's a pet peeve. I mean, I guess a pet peeve is having one position before the motion to dismiss, before some litigation.

And then having the defendants lose on some legal issue that they were hoping to get something knocked out on.  And having it just completely flip flop.  Actually we can do that.  Couldn't you have told me that before we just wasted all this time? I understand being a zealous advocate and litigating issues, but it seems counterproductive when you're telling me one thing at the beginning and then changing the tune when it looks like actually we are going to have to try to resolve this and settle it. So those are definitely two of my pet peeves.
KRISTINA LAUNEY:  Luckily I don't think I've ever done that.  

[ Laughter ]

MORISSA FREGEAU:  What are some of the challenges you face in dealing with access issues?
KRISTINA LAUNEY:  Challenges.  I think, the first one that comes to mind is a core Larry to what we were just discussion. It's not only receiving specialty or an informed complaint, but plaintiffs' attorneys who don't know what they're doing. We have a lot of folks who have read the articles on this and decided they want to get into the website accessibility litigation game.  And you get on the phone with them and it's just obvious that they don't understand the law.  They don't understand accessibility. They just say here's the demand, pay me my money or we're going to litigate.  And even when they send you their printout of the wave and scan or whatever it is and you try to talk through them okay, what are the real barriers here, and they just will not engage.  That's incredibly frustrating.  It's a challenge.  I'll leave it at that.
TIM ELDER:  I think for me, some of the challenge is the speed, at least for technology access cases.  Is the speed at which technology can change. The industry can move a lot faster than the courts can keep up or even the legislature can keep up with.  So access cases about technology, increasingly it's hard to keep up.  I mean, you get to a case where you're going to trial and the technology just keeps slipping out from under you.  And you're trying to have a closed factual record to try a case.  And like the technology is changing while trial is happening.  It makes it a little bit challenging in these kinds of cases. I think kind of shifting to the other ethical issues we're going to be looking at here in a second is trying to balance all of the competing interests, and maybe even within your client's competing interests.

There is an interest in the individual resolution and damages, remedies and piece and getting the access issue fixed. But there's also this issue of we don't want whack a mole for the community.  Maybe there is a precedent to be set here.  And how do you balance the individual interest for this one, but also weighing that against the precedential value that could apply to the industry as a whole or to that point of law. And there is some ethical considerations there to think about.  But these are some of the challenges that I'm wrestling with for sure. But there are others.  

KRISTINA LAUNEY:  I think I would agree with both of those, Tim, actually.  And Morissa I want to hear your thoughts as well. Your thought about the technology and it changing rapidly that made me also think about I think a challenge that we could all agree on is the lack of regulations. I often say I did accessibility cases too.  It's super easy when you have a client on the phone yeah you're in violation, here's the statute. But in website accessibility I hear all the time well it's not required under the ADA. I have to go through here's the path that the plaintiffs are following in filing this complaint against you, where does it say that in the regulations? Where does it say exactly what I need to do. Just like it says exactly how I need to mount this grab bar.  So having more concrete guidance in that way would go a long way.  I think on both sides of the aisle.
And similarly, the differences in the current state of the law based on what court you're in, and sometimes even what judge you're going to get, results not only in a very gray area, but it also results in clients that are sometimes misinformed. Saying well I don't have a physical place of business, so I'm clear.  Well, it depends where you get sued.  And it depends on what might happen with California Supreme Court or the U.S. Supreme Court.  So that kind of movement as well is a challenge.  

MORISSA FREGEAU:  Yeah.  I think similarly, in in house, it's definitely the ever changing, both technology and keeping up with technology.  I think I had a senior leader say a couple of weeks ago that we have some platforms that were built before some people were born who just started working for us, and that's always challenging.  That lack of nimbleness in certain platforms. But also being in house counsel, I mostly focus on insurance, is our regulatory environment.  And other regulatory issue.  So baffling security with accessibility in my mind, they go hand in hand.  But often you're talking to a business person and you need certain security provisions to comply with the law, and I'm like that's fine, make them accessible.  And so there's that balancing and that challenge of ensuring that we're meeting all of the different types of laws we're subject to not just accessibility.
I'm lucky to really work for a company now, I don't have to say why they need to comply with the law.  They happen to look at it as it's the right thing to do.  So I'm very lucky to have that right now.  But that's not true for all in house counsel and other colleagues of mine that I see where it is    you have that hurdle of convincing your business partner that you need to do this.  Not just because it's the law and you get those arguments that Christine is making, but also because it's the right thing to do.

KRISTINA LAUNEY:  Yeah, I have heard from companies before, show me where the regulatory requirement is.  Because absent that, we can't take it to our C suite because we have so many regulatory requirements to comply with and resources are finite. So yeah, that can be even when you have people within the company who really want to do the right thing, sometimes the business cases make much stronger if we have the regulation we want to.
MORISSA FREGEAU:  We could talk about our pet peeves and our challenges forever but let's move on. So I'm going to ask both of you, based on the recent developments regarding serial plaintiffs, and I think we heard a little about it this morning, what do you predict the outcome will be to your practice?  

TIM ELDER:  Well, it's definitely having an effect. I don't consider myself a serial litigant, although I also sort of question like is it really that bad when there's so much noncompliance. There's a part of me that sort of comes from the technology world that says look, we've got a big problem, we need a really fast scaled solution. Let's automate it.  Let's create ADA compliant lawyer sue bots.  Let's figure out some way to make the technology fix itself through AI. I am definitely sympathetic to the problem of massive noncompliance and lack of access. So how do we do that?  How do we incentivize the system to get this right.
The way it's currently having is having some backlash as many folks are seeing. There's criminal enforcement against some serial filers. There is laws that are coming online about high frequency litigation, putting up hoops to jump through. That is affecting in some cases not just the targeted high frequency serial litigants, but also anyone who is trying to do a single individual ADA access claim. I think, from my perspective and from what I'm doing, I'm seeing a couple of things.  One is, at least in the website context, maybe even in some of the other contexts like service animals and general discrimination, is there is mistrust among the defense bar. Well, they've been working on this high number of high volume ADA cases that they have this perception of the value to settle that case is a few thousand dollars and it will go away and it's this small potatoes thing. Even it makes it harder to get past that default assumption from the defendant that you've sent mail to and is sort of responding.  

I think it is having a negative impact on the way that judges and mediators see ADA cases. I'm seeing some defendants put it into their briefs, this narrative of there's this whiney ADA plaintiffs who's just an activist and is just in it for the money and kind of paints the narrative into this conversation that's happening.  Even when this is exactly what Congress intended someone to be able to enforce their rights.  So it's sort of poisoning the well at all stages, both the judge stage, the mediator stage, the defense counsel stage.  And I think I'm also seeing things happen like local rules, general orders that are sort of adopting the assumption about some of these claims and what they should be worth and how they should be sort of filtered out at the beginning.

It's a problem.  And I think it's something that collectively both sides of the bar, both sides of the aisle need to come together and figure out how do we solve this problem.  Because if it's the status quo, it's going to keep getting worse.  And people who are trying to do very concentrated ADA policy work, we're going to see more backlash. I think there's a whole list of things we might see come online if we don't deal with this, notice to cure, removal of certain remedies.  I think it could get very bad very quickly if we don't engage.  It's definitely having an impact on my process.  Christine, are you seeing?
KRISTINA LAUNEY:  So, the recent developments on serial plaintiffs have kind of gone both ways.  I think we've had some decisions on testers recently, we've had some decisions against law firms of or legal actions and some decisions against law firms that represent certain plaintiffs who bring case after case after case.  I know one, I guess one pliable outcome we've seen over the last year, some of you know my practice group we have a blog and one of the things that our blog does is we every year track statistics of the number of ADA lawsuits banned on both website accessibility and all things under Title II filed in federal courts each year.  Last year in 2022, in California, which is historically the state that has the greatest number of lawsuits, the number fell a lot.

And that decrease can most likely be connected to some legal actions that were brought last year against one certain plaintiffs' firm.  We saw the number start to grow again.  So I think that is probably the most quantifiable outcome to my practice that I saw in the last year.  Because things were quieter in California.  Things were still insanely busy in New York.  New York is now the busiest state for ADA Title III lawsuits and things did start to pick up later in the year, so it was kind of a temporary impact.
The long term impact, I hate using the term "serial plaintiffs," but the long term impact of serial plaintiffs has been something that's been going on for a while in terms of what I've seen in companies.  It's sort of commoditized this area of the law.  Because many of the serial plaintiffs, again, it's usually a quick settlement and it's not usually effectuating greater change. That's a blanket statement, but that's kind of more of what I've seen.  And it's turned the attitudes of some into it's just a cost of doing business. We're going to get sued no matter what we do.  So why batter, which I think is sad when you hear that.  Morissa, what do you got?  

MORISSA FREGEAU:  No, I don't think that there will be a lot of change for in house counsel.  I think there is always that, that sort of we got a complaint, it doesn't have anything specific so why bother. So I think maybe one good outcome will be that we'll get maybe complaints that are specific. I would hate to see a corporation just say why bother.  It's the cost of business, sort of what we hate to hear as in house counsel.  Sort of what's the risk of not complying.  It's one of my least favorite questions as in house counsel.  So I would not want that outcome.  

KRISTINA LAUNEY:  I think the one other thing I would say is there is a difference when we're looking at lawsuits regarding accessible technologies and lawsuits regarding physical accessibility.  Again, on the website accessibility front, a lot of the plaintiffs that file a lot of lawsuits are, again, probably just running an automated scan and using that as a basis to file a lawsuit.  And I think it's also maybe caused some of the defendants to take actions that they think are solving the problem, to try and implement something quickly that is not necessarily solving the problem.  So I think it's kind of led to some misinformation as well, unfortunately.
MORISSA FREGEAU:  And you do get those.  I mean I got an email just last week, an automated scan of my company and it wasn't my company's scan.
MORISSA FREGEAU:  What are some real alternatives to litigation?  Tim you want to start?
TIM ELDER:  I do think  and I would say plaintiffs should probably try to carry some responsibility for this if possible.  Is really propose as many alternatives as you can and be creative.  Our firm will often include in a demand letter an offer obstruction negotiations if that's a good option for the client's objectives.  Most people haven't heard instruction negotiations or what it is.  But it can be a very useful tool when, you know, for actually a number of contexts.  Not just Title III.  We've tried these in Title I employment cases and other kinds of clients as well.  So don't overlook proposing creative solutions to try to resolve the case.
Getting a meeting with the client, with the respective clients can also be good too, because it can develop some rapport.  I often like to propose or initiate a meeting where my client gets to meet someone from the company and to share a little about that story. Put a face to the allegation and explain why they're upset.  I think that can be a useful tool to avoid litigation and push things to the resolution category.  
But there are definitely alternatives.  So some cases, and this is an interesting thing, is small claims actually. There are cases where there's an arbitration issue.  Where this case, if it was brought by a lawyer and it was brought forward, it would have to go through arbitration.

Most arbitration, agreements will carve out small claims from being compelled into arbitration for some state things that I don't understand but I'm sure Karla could enlighten me on.  But small claims are often carved out.  You don't need a lawyer, it's a different process.  It might get the client some relief.  And you can kind of use it as not just another tool as an alternative to litigation.  And again, it would depend on the claim and what makes sense and what the client's objectives are and all of that.  But it is another tool to try to avoid litigation.
MORISSA FREGEAU:  Do you want to go?
KRISTINA LAUNEY:  You can go next.
MORISSA FREGEAU:  I think that as in house counsel, I really look to people coming directly to the company.  We do have an accessibility complaint process, and sometimes I think that that just getting that insight, and having your executives understand and be able to understand what it is that someone is asking for and why, I think that that's always really important and something that I think that corporations are open to. I have heard other people speak amongst the in house folks, that the biggest impact they had was somebody with a disability coming and the company getting this bird's eye view of oh, yes.  This is the problem.  I'm somebody who uses large print.

I happen to have not as bad vision as I used to, because I now have enhanced lenses, but I was always that in house counsel that was like no, you know, this website is spilling. I can't see it or I need specific things so that I can.  Lucky for me it hasn't been as prevalent in the last three years since I've had surgery.  But I think that went a long way as well, as being able to just say as an attorney no, I can't read your website.  Or no, I can't read what you just gave me.  No, I couldn't go on your career site.  So I think that that sort of empathy and that, especially with executives, that they just oh, I didn't know.  Or I didn't understand, goes a really long way.  

KRISTINA LAUNEY:  I would agree.  A lot of my clients get a lot of demand letters.  And they get a lot of solicitations from vendors even which they feel like are demand letters. They'll send it to me and say I'm very confused is this a legal action?  Are they trying to sell me something?  Because they do get a lot of demand letters, some ranging from a very basic copy and paste paragraph to a 10 page letter from someone like Tim who is going into detail this is my client. This is what my client was trying to do.  Not just my client was trying to look something up on your website, but a real person trying to do a real thing and how that real thing could not be done. Because of something that happens to be in the writer's opinion a violation of the law.  We would like to talk with you about that.  And that is very different to the paragraph that says we've encountered a barrier on your website and it violates the ADA.  Contact us in two weeks or we're going to sue you.  

It's much more effective than bringing the company to the table, because they understand that it is a real customer with a real problem, and they don't just feel like they're being hit up for something or somebody to a lawsuit. Even still it's sometimes hard when I have clients who have gotten lots and lots of demand letters, to understand that a letter like the one Tim was describing is something that honestly wants to engage.  And isn't just another threat.  I've luckily worked with Tim enough, I've worked with Lanie and Linda and others enough now that I can get them on the phone and explain the real purpose to it. So having counsel that understands that I think is really, really helpful.

Because I know Tim you can probably speak to this, you sometimes get someone on the line from the other side who says oh, you're just going to sue me and they won't really listen to you, listen to your clients.  But once they've been through it and they're able to effectively able to explain it to their clients, I have not had a client who has gone through structured negotiation and not felt like it was overall a benefit to the company.  It's sometimes hard to get them on board, but once they're on board, they're usually very, very happy with it.  
One of I think to Morissa's point, one of the most impactful experiences that I had even had was early on in doing website accessibility cases, I had a client that had a very complicated website.  And the claimant in that case came into a room with my client and the legal folks and the IT folks, who coded and maintained the website, and this claimant was a super user.  And showed them how she was having difficulty using the website.  And just to see their jaws drop open of the IT team, caused everybody else who was in the room from the company, go oh, okay.  And so, you know, just a great illustration of how effective that process can be.  Once you file that lawsuit though, to do that sort of thing is it's really hard to pull it back at that point.
TIM ELDER:  A couple of other ideas too. I occasionally meet a defense lawyer who's never done structured negotiations before, so it's been kind of interesting to see how do they approach it as a first timer to this new process. I know Christine you've been doing this for quite a while but it's kind of new to some people. One of the things we started putting in letters is a reference if you have questions about structured negotiations, here are two defense attorneys who have gone through this process and tell you about it.  Sort of like a trusted neutral reference.  It's usually someone I've worked with so I can say that.  

But we will sometimes offer that.  I don't know whether they ever follow up on it, but it's something we try to offer to help them    we're not trying to con them into some kind of a thing that they should question. The other thing I would say to avoid litigation.  There's been several times where we send a demand letter and we hear nothing back.  We send it to the registered agents and service of process and all that, we send it to the headquarters and we hear nothing.  We follow up with a direct message on Twitter, we hear back right away.
[ Laughter ]

It's like communication has changed, I guess.  So if you don't hear back, sometimes doing just a little bit of extra effort to like hey, did you get our letter.  Send a direct message on Twitter or even the generic info@abc company sometimes gets forwarded once it's in an email that can be forwarded it actually makes its way to the right person quickly and we get a response.  And they're like we want to try to resolve this.  And we were about to file.  If we hadn't taken that extra effort, we would have filed and the whole thing would have gone through a lot of extra effort when I think the company's actual response was yeah, we want to resolve this and settle.  So it's a creative tactic to try to make sure did you actually get the message?  

KRISTINA LAUNEY:  Very good point.  

MORISSA FREGEAU:  I was going to say that was in my best practices, that answer.  I have    

KRISTINA LAUNEY:  Don't ignore, you mean?  

MORISSA FREGEAU:  Don't ignore.  Answer complaints.  So I have seen I mostly support operations, and in my entire career I mostly supported operations, not just digital operations and it's across the board. You can look at somebody who calls the call center, for example, and says I need AB and C and the call center person puts them off.  And you can see as they go up.  They call again.  They've called ten times, they still don't get what they want.  They've made a DOI complaint and they've gone through 20 steps before it gets to Tim in his litigation.  So, you know, my advice always is answer someone when they complain to you.  You may not know exactly what the problem is, and you may not know exactly how to solve it.  At least answer because otherwise you get sued.  And that's I think that is in my best practice.  I think that's why.  Because you guys do this and nobody responds. 

TIM ELDER:  And from the client's perspective, they get mad.  They're mad.  They've contacted a lawyer, they're so frustrated that nobody is listening, nobody cares.  The company they're spending money on isn't even following the law.  And getting a meaningful response to share with that client actually I can help calm that and they may feel validated that someone is actually listening.  That is at least from my perspective, it really helps give the client some of what they're looking for, recognition that there's a problem and how to fix it.  So it can really change a client's perspective when they get a meaningful answer.  

KRISTINA LAUNEY:  Yeah.  I would say to Tim's point about try creative solutions. I highly encourage that.  Rather than just saying oh, they didn't respond so we're going to sue.  Especially today, because we still have a lot of companies that are trying to figure out what the new world of work is.  A lot of people stim at home.  So a lot of even you know, some process gets stuck somewhere and nobody knows they came in.  Or a demand letter is sitting on someone's desk who's working from home now.  I think companies are starting to figure that out better, but I saw that happen so much during COVID.  So don't assume it's they don't care.  Sometimes it's just fallen through the cracks, unfortunately. So I think that that is an important thing to think about.  

Also, we always advise companies to train their employees, those who are going to be manning or personing, I'm sorry, the customer service lines as well as train them in terms of how to issue spot.  So they understand some we words they might be seeing.  Because sometimes somebody might be sending an email and they just don't recognize it for what it is.  Not that the company is unempathetic to it. And on the escalation structure.  They may also not know what to do with it and it ends up in the wrong person's email in box and it just sits there.  So that's definitely best practice as well.
MORISSA FREGEAU:  Yeah, I see that a lot.  I'll be tenth person on an email to say can you tell us something about this client who's asking about 504 and ADA like you would have emailed me first.  Anyway, I see a lot of that.

MORISSA FREGEAU:  Shall we go to the next slide?  


MORISSA FREGEAU:  So this is our, so Tim, how do you ethically balance what's good for attorneys' fees against what's good for the clients and the community. 

TIM ELDER:  This is sort of core of the ethics part of our presentation and how do we look at the ethics. I think it's true for both sides.  There is this balance of, well, if the case moves forward and something is filed and more attorneys' fees rack up, that may be better for the attorney.  But for the client, maybe that's not better.  And so trying to get resolution and injunctive fix sooner, and depending on what the objective of the client is involving damages or things like that, how do we, as ethical lawyers, balance this component to be an advocate. To do it zealously, as one of the terms in the comments of the model rule says.  

Which seems almost like litigious and could possibly be over litigious.  How do we balance that in what's really the best interest of the client and what the client wants. So that's kind of what we're raising here. I think there's a couple of ways to sort of put safety checks from a plaintiff's perspective into the representation. Certainly finding out what the client's interests are early on.  What they are can really help.  
Sometimes the client is mad and wants some emotional vindication that they want to be heard or they want someone to help elevate their voice.  And they usually often want to see the problem fixed.  To have a remedy. Sometimes you have to assess do they want a remedy that's specific to them?  Do they want a remedy that is for the community at large?  And sometimes clients have different views on it.

So you have to really think about that because it can vary by the individual.  Assessing what the client's interest in establishing a precedence, versus fixing it for this one party.  Maybe they go to a bank and they don't care what the banking industry as a whole does, they just want it fixed for this one bank.  And if they can get it fixed for this bank, then they're happy.  If other banks notice, that's great.  But they're not interested in for the banking industry as a whole.  As attorneys we have to be very aware of what that particular client's interest in.  Try to memorialize it, try to be very clear in the setting of the engagement. I'm sure I would be interested in what Christine has to say. Because if she can convince her client that they should fight she's going to get paid more if she settles early so there's a little bit of a dilemma on the other side as well.
KRISTINA LAUNEY:  There is and there isn't. Because I feel like my responsibility is to tell the client this is what the law is, this is what the state of the case law is here.  And these are the relative risks of winning, losing, potentially making law that's not great if you decide to fight a case that might not be the best one to fight. Possible PR implications. So it's my obligation to give them all their options and the pros and cons of each option. And as long as the client chooses an option that is ethical, then it's your obligation as an attorney to pursue that. There are certain companies that I have spoken with that say we want to that's not my style.  I will advocate professionally and support my client's position as the right thing to do, but I'm not going to act unprofessionally.  Sure there's other attorneys that believe that is the way to get things done, I just don't believe in that.  

I think an interesting thing that also arises in this area is that you see for me at least, I've seen the clients that have the best cases, the ones where I say come on, let's file a motion, and it's usually against those firms who are taking very unreasonable, baseless positions in their initial complaint and I'll call them up and say this company has a really sophisticated accessibility program.  The website is in great shape.  You found one broken link that impacts nothing, and they will not let it drop.  So I'm like okay, this is one that will be good to fight. And the company says we don't want to do that.  We don't want to even have a chance of being seen as fighting an ADA suit, because we believe in accessibility.  So those are hard.  You have a good case, you have a very unreasonable person on the other side that really isn't trying to forward the right purposes.  And those companies don't want to fight.  

MORISSA FREGEAU:  I work for one of those companies now.  They feel like if something is the right thing to do, you should do it.  Other companies I've worked for weren't like that, and they were waiting for when is the day we can fight.  But the company I'm with now is they don't    they would not want their brand out there to say they're in a ADA lawsuit.  It would be embarrassing and it would be okay, you just made ethical company for the last 10 years in a row and now there's a lawsuit like that.  So they would want to settle as well.  

TIM ELDER:  And I mean you could have the inverse sort of problem on the plaintiffs' side which is oh, we have a great case.  We're just going to slam dunk make amazing law on this point.  But the company really wants to do the right thing.  

[ Laughter ]

And it's hard because if you really think about it.  If all the cases settle, like we're never going to make like good, helpful law and decisions that really explain the obligation going forward.  And so it starts to be a bit of a whack a mole. So it's this balance.  You can think you have this amazing set of facts, amazing case, and the client is great.  But the defendant is, you know, they're going to do something reasonable. 
You have to work with the client, know what's going on, give them the call.  But that can happen for sure.  And you do what the client wants.  
KRISTINA LAUNEY:  All right. Changes in law.  

MORISSA FREGEAU:  Do you think there's any change in the law that would improve the legal, social, or litigation landscape on the equal access cases?
KRISTINA LAUNEY:  I already gave my speech about regulations.
TIM ELDER:  I'll put a plug in for the website accessibility web applications and software accessibility act.  I think I got the acronym right. We need some federal legislation dealing with digital access for sure.  I think we're starting to see other bills starting to pop up, both in Congress and in key jurisdictions like California, where it is part of this backlash to the high frequency litigation approach. In that we're seeing things like proposed notice and cure.  We're seeing bills that are sort of trying to define standing for certain claims, to create additional hoops to jump through.
And I think if we don't fix it, it's going to the system is going to fix itself without our input.  So there's definitely an opportunity here. I would like to see some changes in that, okay, we're stuck with this high volume private attorney general model that has some uglier sides to it. Sort of like maybe it's like a bacteria that sort of, you know, for the overall ecosystem is sort of helpful to the thing, but kind of looks gross on the outside sometimes. It would be great to see, to tie actual remediation to certain kind of settlements.  

You know, maybe there's a way in sort of a compromise situation where in order to setting these cases, we're seeing some expectation there's going to be a remediation.  There can't be just a cash buyout with no fix.  That's something I could, you know I would certainly think about, as a potential solution.  But there's a lot of legislation sort of churning right now in draft form or introduced in committees in various places. It's something that is definitely going to happen.  So we should be prepared for whatever that change is going to be.  

MORISSA FREGEAU:  Yeah, I certainly agree with regulation.  I think it would add some certainty.  I think that being in a highly regulated industry, in insurance, having a federal standard.  We saw this with 508, with the changes in 508, when there were state laws that followed. The state laws sometimes just said accessibility and you know, your provider directory must be accessible but didn't give a standard.  And sometimes they would be in accordance with 508. So I think that it's sort of historically in insurance, each state makes their own rules.  But a lot of times they will follow a standard.  So having a federal standard for accessibility would go a long way in each state. We wouldn't be trying to comply with 50 different ones or vagueness of just have your provider directory accessible without sort of an explanation of that.
But I think that having that standard and deadlines would make a big deal.  But also having regulatory oversight.  So having a regulator that you have to report to.  In the Medicaid and Medicare world, that works today.  If you have a Medicare or Medicaid plan, you do give a 508 or 504 report to the regulator.  So I think something across that board would go, in my industry, but I think it would spill over to other industries.  I think the biggest gap now that we see playing out in litigation is this brick and mortar.  We all know that the majority of us don't shop in brick and mortar anymore. So having that federal standard across the board, I think, would really help.  And it certainly would help in my role of in house counsel.
KRISTINA LAUNEY:  I think the one other thing I would add on to that is, some sort of relief for small businesses. I think that's something that makes me more sad than anything.  You cannot operate a business without a website these days, it seems.  And so many small businesses are dependent on just the little solo developer who popped up their website and they relied on them to do it right and they get sued and they can't afford to pay a defense attorney.  They can't afford to even push back on their developer very much sometimes. So whether it's education or better support services for small businesses, I think that's something I would love to see through legislation.
TIM ELDER:  Yeah.  Sort of we'll go to Q&A in a second. One other idea that we're sort of looking at is legislation that would sort of shift liability to those developers.  So I don't want to go after mom and pop pizza shop that's using a default template website that they have no ability to control or change.  But what about the developer that built the platform? Can we go after them?  Because they're the ones who really have the responsibility and the feasibility of making the changes to the template. Even though the frontline public accommodation is sort of holding the bag of liability, because they signed up for this website platform.
That's true for a lot of government, contracting and other models as well.  Sort of like if the architect is the one who designed the building to be inaccessible and it's the one who would fix it, should we be looking more in that direction.  And maybe that makes more sense in the digital world than physical, I'm not sure.  But we're looking at legislation that could move upstream through commerce to get to the party that's really putting that technology into that stream of commerce and going downward. Do you want to open it up for Q&A?  


KRISTINA LAUNEY:  Q&A.  So we have one gentleman straight back.  Yes? Our microphone runner is coming to you.  

ATTENDEE:  With respect to the notion of regulations, is there a reason why businesses aren't willing  section 508 even though it includes WCAG things like that would be a standard [off microphone] how many times using that standard which are already published.  

TIM ELDER:  I'll repeat Al's question.  Which was given regulations we already have standards under section 508 which is adopted to WCAG standards, how would the companies feel about that regulation just being applied to the private sector?  

KRISTINA LAUNEY:  As of right now most companies are not subject to the Rehabilitation Act.  For the couple of healthcare providers who might be, sure they're looking to 508 in their compliance programs.  But for those who are subject to Title III but not the Rehab Act it gets us back to okay, where are the regulations that are actually under a law that we must comply with.  

MORISSA FREGEAU:  I think that I've seen a lot in contracts, and that comes in that you're not subject to 508, but we want you to be.  And so we'll do it by contract.  And that's come, I don't know what that looks outside of my industry, but I do see that a lot. I think that it's just what Christine said.  You have those set of executives who are like show me the law.  Like show me the beef, whatever. So that would be helpful to sort of have that uniformity across the board.  I think that WCAG it's also like what level in WCAG. For example, in the I think it's in Medicaid, in Medicaid it says that you have to comply with WCAG 2.1 and any subsequent changes. Whereas Medicare says something different.  

So it's applying that so Medicare doesn't have the subsequent versions, either does 508.  508 says WCAG 2.0iAA and it doesn't say anything about subsequent provisions.  I think that's what companies are looking for, at least in sort of a more regulated industry of what do you which one do you do.  Do you have to look at when WCAG goes to 3.0, do we all have to change, how long do we have to change those types of things that our regulation can give about subsequent changes.  I think it would put that uniformity there, not just for my industry that's regulated, but industries that are really not.  Especially those without brick and mortar.  

KRISTINA LAUNEY:  The microphone is coming towards you.  If you want to go, go ahead.  

ATTENDEE: Hi, I'm Lucia.  I am an attorney at the Texas P and A and I wanted to talk about things that we're getting a lot of from our prospective clients.  One is not website accessibility, but because of the person's disability, their inability to use the Internet or websites in general, and that companies don't provide an alternative. Like they want to talk on the phone, and you know, you go on to certain companies' websites and they say you have a comment, a complaint, type here, or send us this email. Or call. And it's all automated.  Leave a voicemail, and we'll send you an email.  And they cannot use that those tools.  And so I wanted to know if you all are seeing some of that. And number two, what we're seeing a lot is website inaccessibility in the university settings. In post secondary educational settings.  Access to books that are online.  And whether you all have worked in that area.  Thank you.  

KRISTINA LAUNEY:  You want to take it, Tim?  

TIM ELDER: In terms of higher education and accessibility of learning management and curriculum, absolutely.  It's a huge problem.  Been working on it for the last two decades.  And the pandemic only made it worse.  Now everything is online.  Everyone went virtual, everyone went remote. So even second graders, K 12, completely dependent on the accessibility of this virtual classroom technology.  It's a huge problem. I thankfully the Department of Education has put out new guidance that we can use, but even good guidance and Dear Colleague letters doesn't automatically result in compliance.  Particularly when everyone is just panicking and buying whatever they can find to deal with kind of emergency situation that's now sort of changed.  But all the technology that was purchased in the emergency has sort of become the standard.  So it's a huge problem.  I wish I had a great answer.  

The other question about the sort of multi modal forms is it does highlight the digital divide. Everyone assumes if the website is accessible, everyone is going to be able to use it.  But there is going to be there will be a population that just can't use the Internet for any number of reasons.  It might be disability, it might be technology access. The you do have to pay to get online.  Maybe they don't have access for any number of reasons.  I think having multiple ways of getting in are good.  And I think effective community rights are useful for being able to communicate in a way you need to communicate whether that's telephone. But I think the digital divide is a byproduct is everyone is still dealing with with disability and intersectionality and a number of other things. It's certainly a problem, but I think there's language in the effective communication we can rely on to try to make the case even now.  

KRISTINA LAUNEY:  Real quick on the first point, I haven't seen that yet in my practice.  I've seen some of what Tim talked about, but not precisely what the question was. As to the university setting, yes, I've dealt with that quite a bit.  And it's a tough one for many reasons, including that many university digital properties are kind of the wild west sometimes and in corralling the many different people who might be creating the websites, and posting things, et cetera et cetera, is a much more difficult proposition than people might think.  But I think we're going to have a session on the UC Berkeley consent decree so that should be really interesting on that point. We have a gentleman in back.  

ATTENDEE: Hi, level access.  So things that we haven't seen yet, I wonder if we can enter a hypothetical world where a company has a website that we know is accessible.  People can use it, and yet they're still getting trolled by a demand letter.  And I hear what Morissa was saying, you don't want to be the next Dominoes in the media.  But what would be an approach to that aside from, just kind of getting the reputation that Company X just pays all the demands to avoid the media trouble?  

MORISSA FREGEAU:  Is that to me?  It's a really good question that I don't know the answer to. I think that there are always problems.  It's kind of the way I feel.  I haven't seen a perfect website yet, so it may be accessible for you, but may not be accessible for you.  And so it's as in house counsel, it's not just the reputation I'm looking out for my corporation, it's also like are we there yet?  I don't think we're there.  It's been five years, but you know, I can always think of something that we haven't done yet.  So I think that's at least in my world how corporations start to speak, it's really hard, especially as technology changes and things change and regulations change outside of disability, like are we keeping up, are we doing everything.

So you get a lawsuit.  And even if you think you're perfect and we've used Level Access I can say that for at least five years.  And it's still like, I still think like okay, we're not perfect.  It's just that's sort of my reality of the way it is.  So maybe those regulations would help that, I don't know.  That's why I think corporations are hesitant to say it's not just the reputation, but it's the are we really done?  

TIM ELDER:  I think too, I mean, some of this will subside as these issues get ironed out.  And more of these cases go to trial.  I imagine at some point there will be a trial about accessibility technology, a website or a mobile app or virtual reality or whatever, and the defendant will win because they showed that a person with a disability was actually able to use the technology and it didn't impede their access of the. So while the plaintiff may have pointed to some problem, and some barrier for them, the defendant will have a case.  It's just like the legal system working out disputes.  Sometimes you don't have their facts.  

I've received intakes where someone raised a barrier and it turned out to be more user error than true technical violation of a particular standard.  So it raises some interesting questions that    we're trying to get access and establish what the law is and what access should be.  And there may be someone who brings a claim and the legal system will sort it out.  And some will lose.  I think as that happens more, and more of these cases move forward and we get more examples of when cases win and lose, that will help sort of inform the legal community on how to assess the merits of a lot of these cases.  

KRISTINA LAUNEY:  I know we're closing in on lunch, we have a couple more questions.  

ATTENDEE: Hi, I'm with a private firm in San Francisco.  Nice to see you, it's been a while.  As to the physical accessibility spaces, and I'm taken with this fear of suing Mom and Pops.  If you do that work that's going to be part of the problem.  And the challenge I face is the leasing agreements between the tenants and the owner of the property who may very well know exactly what their obligations are, and they pin those obligations on the tenant, who very well may be Mom and Pop I just want to run my restaurant out of this space.  

Are you aware of any legislation that would correct for that?  Because you've got these companies that have these really savvy commercial leases, and really the obligation should be on them.  But they pass that liability on to the tenant.  Is there any legislation that you're aware of that's attempt to go address that?  And I'm curious because I would like to get involved with that process, if not.  

KRISTINA LAUNEY:  I don't think so.  Do you have anything, Tim?  

TIM ELDER:  I don't.  There should be, right?  That's the person who is responsible, that's the entity that can properly do the remediation and they should be in it.  I think we are looking at this for digital accessibility, because the cement is still a bit wet in regulation of this field of the law, visual access.  But I think a lot of the growing pains that we're sort of sorting out in that space probably also would apply in physical construction cases.  And you should be able to go after someone who is leasing.  But they contracted away indemnity or liability to the small party.  It's a balance of power problem for sure. 

KRISTINA LAUNEY:  I'm trying to think too.  I'll keep my eye on, we're just starting this session for this year.  I don't know if it's something the CRD has been looking at, but that might be worth watching as well.  

ATTENDEE: Thank you to our speakers.  I'm sorry we have to wrap it up now.