My friend Lainey Feingold just put up a great blog post about a comprehensive web accessibility settlement agreement involving the New York State Attorney General’s Office.  The settlement agreement involves HSBC Card Services and requires, among other things, that HSBC make its website conform to WCAG 2.0, level AA.  Lainey’s post gives an excellent description of the settlement.

I’m sure that this press release has got a few people scratching their heads about the legal issues involved in the case.  I’ve not seen the settlement agreement itself— I suppose because I can’t find it yet on their site.  I’ll try to provide some legal context for background reading and give my take in an FAQ format.

What is the scope of the Attorney General’s powers?  Should companies be worried about getting sued?

Every state in the union has an attorney general’s office and these offices are entirely separate from the U.S. Attorney General (Eric Holder).  State and Federal systems are parallel, but separate.  Because the office of the state AG is created by state law, their powers vary from state-to-state.  In general, however, state attorney generals are responsible for enforcing state laws within their states and for protecting citizens within their state.

New York state has been very active in the area of web accessibility.  The big one that started it all is the New York settlement agreement with Ramada.com and Priceline.com from way back in 2004.  That was a case brought under the Federal Americans with Disabilities Act.  What right does a state AG have to enforce the ADA when the ADA only talks about private citizens and the U.S. Attorney General having the right to sue?  It’s because the state AG is suing to protect the citizens of the state.  For you legal geeks who just need to know more, that comes from an ancient legal doctrine called in parens patriae.

Is WCAG 2.0 Level AA Now Required in New York?

Certainly, the advocates will say that and, to a certain extent, it is true.  More accurately, if a company gets investigated or sued by the New York Attorney General, WCAG 2.0 level AA is probably the bar that New York will expect for settling the case (in addition to money damages, monitoring, and a bunch of other intrusive requirements that are best avoided).  But, remember that this is a settlement agreement voluntarily entered into by the parties— it’s not a legal opinion by a court.

So strictly speaking, there isn’t legal authority compelling companies doing business in New York to meet WCAG 2.0 Level AA.  Nevertheless, if I were advising a client in New York state about their website, I’d still urge them to meet WCAG 2.0 Level AA to keep out of the AG’s crosshairs.

How Does This Settlement Clarify Requirements in New York?

I’m actually quite glad to see a settlement that focuses on WCAG 2.0 level AA.  While I’ve had my criticism of WCAG 2.0 Level AA being adopted worldwide because of its unintended consequences, WCAG 2.0 Level AA does now seem to be the de facto standard for web accessibility.  My big criticism of the 2004 Ramada.com and Priceline.com settlement agreements mentioned above was that they required compliance to a random hodgepodge of Section 508 standards and WCAG 1.0 level 1 and 2 guidelines.  That just messed everything up and gave zero guidance on what companies in New York were expected to do.  To my mind, settling now on WCAG 2.0 Level AA is a huge step forward.

How Does This Settlement Sync Up with NFB v Target?

Quite well actually.  HSBC appears to rely on the ADA as did the portion of Target that did not involve monetary damages.  So, this is just more authority for the idea that Title III of the ADA requires web accessibility.  Also, as HSBC is outside the Ninth Circuit, the hooplah about the “nexus” requirement between a bricks-and-mortar presence and the website is played down (that may be a discussion for a later post).  It’s good support for the idea that Title III requires web accessibility… and now it gives credence to the idea that WCAG 2.0 Level AA should be the bar.

As the New York Attorney General obviously could not take advantage of California’s Unruh and Disabled Persons Act, the settlement didn’t include big monetary payments like the Target settlement agreement did for California plaintiffs.  To me, California’s Unruh Act and DPA remain the biggest, baddest, and most awesome hammer that an advocate can swing against companies that are dragging their feet on accessibility.  Print out copies (along with the Target class certification opinion) and put them in your briefcase.  For the piece de resistance, print out and highlight a copy of the Unruh Act’s enforcement provisions and remind your opponent that they face treble damages starting at $4,000 every time a visitor to their site can’t buy a $2.99 bottle of detergent.  I’ve blogged separately to compare Unruh and ADA Title III— it’s definitely the stronger tool for companies with customers in California.