000532	08.wma
000000	Clifford R. Michel:  Amira has just filled us in on the duties that may be imposed upon Internet Service Providers with regard to the ADA.
000009	And Mark, could you now turn to the issues of what are the potential liabilities involved for failure to comply with those obligations?
000015	Mark Howitson:  So sure, the liability that falls from the Americans with Disabilities Act comes in really two categories.
000023	There's what we'll call an equitable relief, which is really an injunction.
000027	And then the other category of relief available is damages, in other words, money.
000032	And the way the injunctive relief works is typically the plaintiff sues the defendant for failure to comply with Title III,
000038	that is failure to make the place of public accommodation reasonably accessible.
000042	And they will bring a motion asking the court to impose an injunction and to supervise the change or the accommodation in that site so that people who are,
000053	in the case of Target for instance, visually impaired, can get access to that place of public accommodation.
000058	So the real problem for anyone sued under Title III of the American Disabilities Act is the injunctive relief.
000107	And you may say well, why is that such a big problem.
000109	And the reason why it's a problem is because, for one thing, if you irritate the judge enough, the judge could issue an injunction that could shut the site down.
000119	Now, if the website that you're operating is an insignificant portion of your business that may not be a problem.
000125	But if you're an amazon.com that's a huge problem.
000129	So shutting down the website is probably a rare remedy that a court might impose, but it's certainly a possible remedy.
000135	The court could say, you know what, I'm going to shut it down until it's compliant, and that could be a tremendous,
000141	tremendous loss to a company and they would have to scurry around to get that website up and to fix it to be ready to go, otherwise they would be out of business.
000151	So that's a huge possibility, a huge downside.
000154	The other problem with injunctive relief is really the defendant loses control, to some degree,
000200	over the accommodation because now no longer is the accommodation really controlled by what that defendant things should be done.
000209	It's controlled by the judicial oversight.
000212	It's what the judge thinks should be done.
000214	So you may think, as the defendant, that you know exactly what you're going to want to do and how much you need to do
000220	and how much you need to spend to get that website to be accessible.
000224	But if the judge thinks you're wrong and it costs you an order of magnitude more money to fix it, that's too bad.
000230	You're just going to have to fix it because you're subject to contempt for failure to abide by the injunction
000237	and the judges don't take kindly to have their injunctions ignored.
000241	So the real problem is it could be that you have the nightmare scenario where your website is shut down.
000247	And then you have judicial oversight, which is sometimes arbitrary and can be rather punitive in its cost.
000253	And then last, but certainly not least, it would seem to me, the PR nightmare you would experience from having a court enjoin you
000302	and order you to make your website compliant so that people who are, for instance, visually impaired could use it, would be substantial.
000309	I mean, I just can't imagine there is any retailer that spends any money on its PR budget that would want the notion that it had to be forced by a court
000319	to get its website to be compliant with the Americans with Disabilities Act.
000322	That's just not something anybody wants.
000323	And so, the public relations is not something that comes lightly to the large organization.
000331	So the injunctive relief to me is the biggest hammer they have.
000334	There're other forms of relief, for example, talk about damage in a minute, but they can do declaratory relief.
000339	The judge could declare that your website is noncompliant, but there's really no cost associated with that.
000345	There is some PR associated with that.
000346	But really it's the injunction what you're always dealing with and have to deal with the judicial oversight of an injunction
000351	and the cost of complying with what a judge thinks should be done.
000354	The second category, as I talked about, is damages.
000358	Technically speaking, under the Americans with Disabilities Act damages are not available, but a number of states like California have enacted statutes,
000405	like California's Unruh Act and the Disabled Persons Act, which provide for damages in the event that you violate the Americans with Disabilities Act.
000413	So essentially, the way it works is -- and if you're found to be in violation of the Americans with Disabilities Act,
000418	then you get hit with damages under the California Unruh Act or the Disabled Persons Act,
000422	under those circumstances they provide for potentially attorney's fees and treble damages.
000428	Now the reason why I say those aren't that much of a significant concern to most clients or most of my clients is because, frankly,
000435	it's hard to prove if you're the plaintiff that there were any monetary damages from not being to access a website.
000441	But what is the damage sustained by individuals in the Target case?
000445	It's hard to imagine.
000446	Theoretically, all of the services would have been available at another retailer at the same price.
000451	You can't show that there's a price difference.
000453	You can't show that they lost income as a result of not being able to access the target.com website.
000457	So they don't generate, these cases don't tend to generate damages like an employment case would where somebody lost a job or somebody got hit by a car
000505	and was injured in some way.
000507	They don't generate a lot of damages so the damage component of the potential liability doesn't typically add up to a lot of dollars.
000516	Like I said, the real issue for most people who are faced with these lawsuits or threatened lawsuits is the injunction.
000523	That's what they're really worried about.
000525	Clifford R. Michel:  Well, that leads directly to the issue of how companies should today best address this issue.
000532