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000000	Clifford R. Michel:  So we've addressed the potential liabilities that could befall a company that failed to comply with the ADA, as to its website.
000009	So, Mark, what are the best practices that businesses can follow to avoid potential liability.
000014	Mark Howitson:  Sure, you know, we get this question a lot from some of our clients.
000017	They're asking us what should we do.
000019	Some of them call us before they get a letter, for example, from the National Federation of the Blind, or any other different groups.
000025	Some of them are just calling because they want to know what they should be doing.
000029	And my view is if you're a business with a website, you want to make sure that that website is not the target of the nasty letter from somebody.
000038	So in my view, you should be proactive.
000042	There are a great deal of resources for learning about or achieving web accessibility.
000047	Amira talked about some of them are available on the web at www.section508.gov,
000054	where you get a list of some possible solutions or possible accommodation that have worked, that work for the government.
000101	There are, for example, off the shelf products that help you modify your website so that the text of it can be read by a screen reader.
000109	And at a minimum, it would seem to me that you want to start taking advantage of those products if your website is something that you're relying on.
000116	You certainly don't want to be in a situation where I think, well let me say it differently,
000123	I think you want to be in a situation where if you get a letter from National Federation of the Blind or some other organization,
000130	you want to be able to respond to that letter and say, thanks for your letter, let me tell you what we've been up to, here's what we've fixed so far,
000138	here's our plan for fixing things in the future.
000141	And so, when clients call us and we ask them, well, what have you done so far and they say nothing, usually what we say is we should set up a plan
000150	so that you have a strategic plan so that at the end of that plan, whether it's a one year, two year or three year plan,
000157	that you can say at the end of that three year plan that you've done everything you reasonably
000201	can do to make your website accessible by people who might be hearing impaired, visually impaired or any other impairment that may be impacted by a website.
000210	And the notion of that business plan is that now you have a plan, so now when the National Federation of the Blind of any other organization writes and says,
000219	Hey, where are you with this issue, you can write back to them and say, here's where we are, here's where we're going, look forward to you input,
000225	we'd like to know what you think and tell us if there's some way you think we could do better and we welcome you into the planning process.
000230	What you don't want to be in a situation is where you say we've done nothing and we're going to do nothing because, as you can imagine, 
000239	response is not going to be well received and certainly that would not be a response I would ever help somebody draft.
000244	But that's one concern.
000247	Clifford R. Michel:  That leads me to ask, do you think companies can take any solace in the undue burden exception,
000252	based on what you see now in terms of available products and available resources to help one modify a website?
000258	Mark Howitson:  Well, technically there is an affirmative defense out there.
000302	You hear Amira talk about it and it's the undue burden defense she talked about, you just mentioned.
000306	But it's going to be a very hard argument to make that, for example, a retailer that measures its revenues in the billions would be unable to spend $10 million,
000316	$20 million, $30 million over a two year period to make its website accessible by people who are visually impaired.
000322	I just don't think it's ever going to fly.
000325	Now, theoretically, if you're a small Mom & Pop operation and your entire revenues in a year are a million dollars
000333	and it's going to cost your $4 million to fix your website, well that's where the undue burden test might work.
000339	But that's not your typical situation.
000342	Your typical situation is somebody who's actually doing well and making money, has some degree of profile on the Internet.
000348	That's why they got a nasty letter and they have some revenues or profits to point to.
000353	I mean, I've been in depositions in other contexts where our client tried to use the undue burden defense
000400	and the question that typically comes to our CEO would be questions like, how much money did the company spend on the flowers for the reception desk last year,
000407	how much money did the company spend on retirement packages for the CEO that left.
000412	And then after about four or five minutes of those questions you appreciate that your undue burden defense has gone down the drain.
000419	So my view is unless you've got a very good argument on undue burden, just pretend it doesn't exist.
000425	You have a much better chance of trying to argue a fundamental alteration.
000429	But I think, frankly, from my perspective, the way to do this the best is to engage in the issue and be proactive.
000438	That's what you need to do.
000439	You need to take advantage as much as you can of the resources that the government gives you on how to accommodate.
000446	For example, the National Federation of the Blind has on its website resources or links to resources or consultants who will help you make your website
000455	so that it can be seen or read, in particular, by people who are visually impaired.
000502	So I think you've got to be proactive.
000503	You have to be responsive if you get a letter from one of these organizations.
000507	You want to engage them and get their help and they're very happy to help.
000512	And one of the things I've even suggested to a client is maybe pick up the phone and call the National Federal of the Blind and ask them, what do you guys think.
000521	We're undertaking this process to update our website.
000525	We think we would like your input on what we should be doing.
000530	I mean, they would be delighted, I think to get that kind of a phone call, rather than have to send out a letter.
000534	The other advantage to being proactive and responsive is that the public image and public relations you get from being that way,
000541	I mean, you want to be the company that reaches out and says hey, we are accessible to everybody.
000546	If we have missed you, let us know.
000547	Because really what you're talking about is an increased customer base.
000550	How many more people are going to be able to hit your website if you make it accessible to people that are hearing impaired or visually impaired.
000556	Clifford R. Michel:  Exactly, disabled Americans are an extensive potential base for these companies.
000603	Isn't that true?
000604	Mark Howitson:  Absolutely.
000605	And so if you're a nationwide retailer and they comprise 2%, I don't know what they are but if they're even 2% of the population you want to be able to reach out
000614	and say we're doing the best we can to bring another portion of the market to us.
000618	If you could increase your market share by doing something as simple as changing a website, you'd think you'd jump all over the opportunity.
000624	That's the idea.
000626	It seems to me, granted there may be some costs associated with making some of these accommodations.
000632	I'm not saying that there isn't.
000634	And sometimes those costs are not insignificant.
000636	But I think if you can spread the cost over time and do it yourself, that's much better than getting caught two years from now having done nothing
000644	and then being faced with an injunction that's going to come down in ninety days and you have ninety days to basically fix your website
000650	or it's going to get turned off.
000651	I mean, that's certainly a nightmare scenario that could easily happen.
000654	So my advice is to start engaging on this process now, ignoring all the legal niceties of it
000700	and maybe some day the Supreme Court determines that there is no place in cyberspace.
000705	But great, let's assume that we're wrong, that the Supreme Court doesn't rule that way but, in fact, there is no place in cyberspace,
000713	but you happen to have the one website out there that's accessible by people who are visually impaired
000718	and that renders your business a tad more successful than your competitor.
000721	That's a win.
000722	So I think from any perspective, being active and engaging on this issue is the right way to go.
000729	I just think that's the way most people are looking at it.
000732	Frankly, I've had lots of conversations with clients and that's the way most everyone's taking it.
000735	I don't think I've had a single conversation with any client, even clients that probably could safely argue fundamental alteration.
000742	I think even those clients are saying, well, we'll do what we can to make our website accessible.
000747	It may not mean that our service is particular enjoyable, given what it is.
000751	But nevertheless, we're going to do what we can, so that if we get that letter or whatever, we're going to say, well, we did what we could.
000758	We tried to reasonably accommodate.
000800	Clifford R. Michel:  Well, I think as a new wave of web designers comes out of school, we're going to see that these issues are ones they're well familiar with
000807	and they're going to be prepared to address those issues as they modify websites for companies for whom they work.
000812	Mark Howitson:  Indeed, and I think, I'm not expert, but I think if you were to talk to people who are web designers they would tell you that it's much easier if
000820	you're going to build the website today to build it with these features, then to retrofit a website after the fact with these features.
000827	But you know, web retailers are almost always upgrading and updating the look, if you will, pardon the express, and feel, if you will, of their website,
000836	as they call it, and this is just one of their capacity or one of their portion of that.
000841	You're upgrading how it can be interacted by somebody who can't look or who can't feel.
000847	Clifford R. Michel:  I'd like to thank our employment experts, Mark Howitson and Amira Day of Orrick,
000856	Harrington & Sutcliffe for their insights into this fascinating and timely topic.
000900	And, of course, this Podcast would not be complete without a proper disclaimer, so here goes.
000905	The views and opinions expressed in this podcast recording do not constitute legal advice on the part of Orrick, Harrington & Sutcliffe,
000912	or Santa Clara Law School's High Tech Law Institute.
000915	On behalf of the High Tech Law Institute and my colleagues at Orrick, we close for now and hope to share with you soon another technology law topic of interest.
000925	So long for now.
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