MCUL Pens Open Letter to DAAG Gore in Response to Litigation Threats

Credit unions in Michigan and across the country have been receiving an alarming number of demand letters claiming they have violated the Americans With Disabilities Act (ADA). As a result, MCUL has written a letter to Deputy Assistant Attorney General John M. Gore, asking for clarity.

The letter can be found in full below:

Dear Deputy Assistant Attorney General Gore:

The Michigan Credit Union League (MCUL) is the statewide trade association representing 100% of the 237 credit unions located in Michigan. On behalf of our member credit unions, MCUL would like to take the opportunity to address the problematic class action litigation threats that our member credit unions are receiving, brought forward under the guise of violations of the Americans With Disabilities Act (ADA).

Credit unions are not-for-profit, member-owned financial cooperatives and have, from their inception, a long-standing tradition of protecting their members’ interests. Several credit unions in Michigan that have received demand letters stating they have violated the ADA are smaller credit unions under $100mm in assets and in many cases under $50mm. For credit unions, particularly smaller credit unions, the significant costs and resource burden of class action litigation can be devastating and even one lawsuit could jeopardize the financial well-being of the credit union. MCUL is hearing from counsel, as well as member credit unions who have reached out to their bond carriers, the insurance companies are choosing to settle to the tune of $10,000 per demand notice.

Credit unions were created to serve all members in need of financial services. If credit unions were presented with ways to increase access to any product or service for their members with disabilities, they would take the appropriate steps necessary to address those concerns. However, instead of being presented with appropriate guidance they are being inundated with demand letters threatening litigation under ADA targeting highly technical alleged violations based on unclear requirements for compliance. For example, Michigan credit unions are receiving the same demand notice citing the credit union’s “failure to comply with version 2.0 of the Web Content Accessibility Guidelines” subjecting the credit union to liability under state and federal law. As seen in Michigan, the same law firm is targeting many different credit unions, seeking protection for non-members of the credit union, that arguably have no reason for wanting access to the site. The letters received in Michigan state “a blind Michigander” as the client.

In 2010, the Department of Justice (DoJ) issued an Advanced Notice of Proposed Rulemaking (ANPR) governing website accessibility. Unfortunately, the DoJ failed to issue a final rule leaving a significant amount of ambiguity as to the appropriate standards and requirements credit unions should follow. With such ambiguity, the law firms previously discussed are taking advantage of the lack of guidance. As a result, credit unions, without extensive financial resources to fight the lawsuit, are settling with the settlements going to the attorneys and not the consumers.

With the growing number of demand letters against Michigan credit unions and credit unions across the country, MCUL respectfully requests the Department of Justice review and issue clear rules for which credit unions must comply. Specifically, it is pertinent to MCUL and our member credit unions to know if the WCAG 2.0 standard is the required standard and whether credit unions must come into compliance with any new WCAG standards.

MCUL respectfully requests of the DoJ, if the Department is unable to finalize its regulation, that it provide immediate clarification in respects to the DoJ’s 2010 ANPR. The ANPR should be clarified to state the ANPR is inapplicable and no court should rely on the content. MCUL also requests, for immediate consideration, the DoJ further provide credit unions, other businesses and financial service providers with much needed clarity about their position on the issue.

MCUL shares our concerns with our national trade association, Credit Union National Association (CUNA). We firmly believe the frivolous lawsuits surrounding the ADA and website accessibility could be limited or cease altogether should the Department of Justice finalize its 2010 proposal or provide necessary clarifications on the standards in which credit unions should comply. Such lawsuits are particularly harmful to credit unions and their members due to the unique member-owner structure of credit unions. Such regulatory burden and uncertainty imposes increased costs on the membership directly. On behalf of Michigan’s credit unions and their 5 million members, MCUL thanks you for your consideration of this critically important issue.