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Advisors are Blind to Special Needs, Lawsuits Claim

By Miriam Rozen July 25, 2018

In Queens, N.Y., blind resident Luc Burbon has filed dozens of proposed class action lawsuits since January, including ones targeting UBS, Edward Jones, Baron Capital, Lazard Ltd., Pacific Investment Management, and more than 45 other corporations including Disney and HBO.

In each of her cases, all filed in New York federal court, Burbon alleges the defendants have violated the Americans with Disabilities Act by failing to design, construct, maintain, and operate websites that are fully accessible to and independently usable by millions of other visually-impaired persons who are protected under that federal law.

“In today’s tech-savvy world, blind and visually-impaired people have the ability to access websites using keyboards in conjunction with screen access software that vocalizes the visual information found on a computer screen or displays the content on a refreshable Braille display. This technology is known as screen-reading software. Screen-reading software is currently the only method a blind or visually-impaired person may independently access the internet. Unless websites are designed to be read by screen-reading software, blind and visually-impaired persons are unable to fully access websites, and the information, products, and services contained thereon,” Burbon’s complaint against UBS argues.

“We don‘t think this action has merit. We‘re fully committed to and continue to spend significant resources on making our website fully accessible to all our customers,” UBS’s spokeswoman Erica Chase writes in an emailed response for this story.

Lawyers at Morgan, Lewis & Bockius, UBS’s defense counsel, decline to comment for this story, citing the pending litigation.

Meanwhile, “Edward Jones believes it has addressed the issues raised in the lawsuit related to our website’s compliance with the ADA. The lawsuit isn’t fully resolved, but we hope to reach a final settlement in the near future,” John Boul, a spokesman for the wirehouse, writes in an emailed statement.

According to Lewis Wiener, a law partner in the Washington, D.C. office of Eversheds Sutherland, who represents Edward Jones, plaintiff lawyers began filing these lawsuits by the dozens in 2018 “to fill a vacuum” created after December 2017, when the Trump administration withdrew a previously-announced advance notice of rulemaking setting guidelines for website accessibility. Wiener, who serves as his law firm’s co-chair of global financial services disputes and investigations, expects more ADA claims related to website accessibility to target financial advisory firms.

Joseph Mizrahi of Brooklyn’s Cohen & Mizrahi, who represents Burbon in the UBS case, did not return a call for this story.

But Mizrahi and other plaintiff lawyers pursuing these claims have seized on a legally strategic moment for filing the suits, according to Wiener. They are doing so when there is no guidance from the federal government about website accessibility requirements, and a split persists among the federal circuit courts about exactly what constitutes an ADA violation for websites, Wiener says. So these cases present significant challenges for defendants, Wiener says.

Typically the plaintiff lawyers pursuing the claims use off-the-shelf software that identifies alleged deficiencies in the accessibility of websites, Wiener says. That software, however, fails to distinguish nuances, such as differences between a website’s drop-down box and its functionally insignificant images – a decorative photograph of a daffodil, for example, Wiener says. So the software analysis provides only a rough -- and often inaccurate -- measure of a website’s accessibility for the visually impaired, Wiener says.

Yet the evidentiary record that plaintiff lawyers create with the software is enough to prevent their cases from being dismissed as frivolous in the early stages of litigation, Wiener says. Therefore, most defendant wealth managers, if they don’t settle, should expect to have to endure the expense of answering discovery requests (usually the most costly aspect of most lawsuits) before they secure any favorable opportunity to persuade a court to dismiss the claims, Wiener says.

Facing such odds, the corporate defendants that have settled with plaintiffs typically sign agreements with confidentially clauses, Lewis says. As a result, he declines to detail how much any of his clients have paid out. The defendants that have settled also usually agreed to revise their websites so they are more accessible for the visually impaired, Lewis says.

WC3, a nonprofit organization, sponsored by industry, disability, and government organizations, including HP, Inc., IBM Corp. the European Commission, and the U.S. Department of Health and Human Services, has developed guidelines for making websites more accessible. Also, plenty of consultants offer services to help companies achieve website accessibility.

But it’s not that arduous or complicated to achieve accessibility, according to consultant Simon Dermer, a chartered financial analyst, who founded and serves as managing director of Toronto, Canada-based eSSENTIAL Accessibility. His firm helps companies enhance disabled customer experiences through the integration of assistive technology with digital accessibility support services.

“People get really lost in the weeds. Look at it with common sense, from a user’s point of view,” says Dermer. “If you have an image, label the image so a blind person’s reader can read it,” Dermer says. “Get on the path to making your website accessible. Issue a statement saying you are doing so and that you are acknowledging deficiencies. Send the message that you recognize and understand the need to make changes and that you’ve retained a third party vendor to advise. Don’t just pay lip service,” Dermer says. “You don’t want to fight this. Get testers and focus groups,” he adds.

For some in the financial advisory world, news of the ADA-related website accessibility claims has not reached their home screens.

(Getty)

“Nobody has ever brought up these issues,” says Jack Waymire, a founder of Paladin, a Lincoln, Calif.-based consulting agency that focuses on advisory firms with less than $3 billion in assets under management and helps them make their websites more useful for prospective clients.

But Waymire nonetheless concedes that, as financial advisory firms offer their services more and more often through digital channels, website accessibility for the visually impaired will undoubtedly become a bigger issue for all players in the industry.

The time is now for the financial advisory world to pay attention, given the plaintiffs’ accelerated rate of filing lawsuits, stresses defense lawyer Wiener.

“We’ve been telling our clients about this for years. Before they thought there was no urgency behind it. It wasn’t a high priority, or it just never really got funded. These lawsuits are putting a fire under them. They are in the process of becoming compliant,” Wiener says.