A lawsuit has been filed in State District Court in Fort Worth, Texas, in which both the Texas Bankers Association and the Independent Bankers Association of Texas have joined forces to attack the ADA website compliance issue. The lawsuit seeks injunctive relief and attorney fees, not traditional monetary damages.
In earlier issues of the OBA Update, we’ve mentioned efforts by a Pittsburgh, Pennsylvania, law firm to extort money from small businesses, including banks, alleging various violations of the Americans with Disabilities Act (ADA) with respect to the businesses’/banks’ websites. The allegations are that the specific website is not accessible by hearing or visually impaired consumers.
Here are the specific allegations of the suit:
1. For the last several months, defendants have addressed form letters to TBA and IBAT members. In these form letters, defendants claim that they represent one or more individuals who reside in Texas and who accessed or attempted to access internet-based banking services on a bank’s website, apparently as a “tester,” and they assert that the bank’s website had “access barriers,” purportedly giving rise to claims for violation of the ADA …
2. Enclosed with each form letter is a proposed draft Settlement Agreement setting forth the terms under which the defendants offer to settle the purported ADA claims against the Bank. By way of the proposed Settlement Agreement, Defendants offer to provide the bank with a full release of their clients’ purported ADA claims if the bank agrees to “pay certain attorneys’ fees and expenses in the amount and in accordance with the terms memorialized in a separate, confidential letter agreement” by which the bank would retain Carlson Lynch to represent the bank in defending ADA claims based on the bank’s website for a period of two years. The future professional [legal] services are to be provided to the bank as the soliciting lawyers’ clients in exchange for a to-be-negotiated legal fee. …
What’s really interesting is the TBA/IBAT petition alleges the law firm has committed a criminal offense of “Barratry and Solicitation of Professional Employment.” Under Texas law, “barratry” means an attorney offers anything of value to a prospective client to obtain employment as counsel for that prospective client.
Specifically, the petition alleges that the law firm and the individual defendants offered a thing of value (i.e., a release of purported ADA claims) to the Banks with the intent to obtain in return payment from the banks for the rendition of legal services. They were demanding employment as their attorney in exchange for the release of their claims.
A copy of the petition, form letter and draft settlement agreement can be viewed at http://www.oba.com/usr_uploads/adapetition.pdf.