On February 16, I published an article here entitled, “Stop The ADA Trolls” which discussed what I believe to be an unethical and counterproductive process being used by the law firm of Carlson Lynch Sweet & Kilpela LLP to use the ADA to extort large sums of money from businesses with some to many accessibility problems on their web sites. Last week, I published a piece called, “Stopping The ADA Trolls: Something You Can Do” which, if you are a US citizen residing outside of California reading this before March 15, 2016, I urge you to read it and follow the steps to file an objection to one of the Carlson/Lynch cases and their representing the class of all people with vision impairment in the US.
This article, the third in the series, takes a look at another counter-suit filed against Carlson/Lynch and it demonstrates just how weird this law firm is and how ridiculous the tactics they’re using are. For me, this is one of the rare cases where I needn’t rely on unnamed sources as all of the information I’m using in this article comes directly from the public record. I’ve added the information I got off of Pacer to this .zip file you can download by opening this link. Having an actual public record makes my job digging up information much easier as no sources are necessary, hence, I don’t need to protect their identities.
As you will see, Carlson/Lynch aren’t just hyper-aggressive about ADA trolling, they are possibly committing fraud and, in a somewhat entertaining twist, it appears as if their web site has accessibility problems as well. I can’t make this stuff up, Carlson/Lynch, a firm claiming to represent our community has its own accessibility problems so, I suggest that they should continue their lawsuit blitzkrieg only after they are finished suing themselves for the same reasons they are suing others, doing anything else is just hypocrisy isn’t it?
The Harbor Freight Counter Suit
I rarely cover a story that continues to move so quickly after I publish an article discussing it. In the period since I published the first of the pieces, a company called Harbor Freight Tools has, as I describe regarding Mazzio’s Italian Restaurant and Catering in the first article as having done, has filed a counter suit against Carlson/Lynch that alleges fraud for threatening to file a lawsuit while refusing to name a plaintiff but, unlike in the Mazzio’s case, the team representing Harbor Freight took an additional step, they ran the Wave accessibility checker from the good people at WebAIM against the Carlson/Lynch web site.
As this is such weirdness that it wouldn’t be believed if this was fiction, I will quote verbatim from an email sent by Attorney Greg Hurley of the law partnership SHEPPARD, MULLIN, RICHTER & HAMPTON LLP that you can find in the ever growing .zip file.
Note: The email below refers to a “screen shot above” which those of you who can see can read in the PDF in the .zip file but, unfortunately, I haven’t even read it myself as I couldn’t convert it into something that I could open as text on my Macintosh. Maybe the US government should, under Section 508, require that all documents filed in legal matters be accessible as, otherwise, it’s kind of a bitch for a blind person to use Pacer, something I think is a fundamental right as access to public records includes people with disabilities, including me in this case.
The Email Verbatim
I was surprised when Harbor Freight sent me your demand letter regarding the accessibility to their website. Your letter is identical to the ones you have sent to many of my other clients. I note that you did not disclose the “claimant”, nor did you disclose what transactions they were unable to complete. It is impossible for us to preserve records without this information. Also as you know your client’s standing and the scope of their claim is dependent on their disability. Does this hypothetical plaintiff need spoken text ? large font ? low contrast ? high contrast
You appear to base your allegations on the an audit for compliance with Section 508 of the Rehab Act. You won’t be surprised that Harbor Freight is not a governmental contractor and therefore not subject to the Rehab Act. You also assert that the WC3 / WCAG guidelines are mandated by the ADA. I think you also know that is not true. If you are correct that such guidelines are mandatory, then your firm’s website suffers the same alleged deficiencies that you claim to have identified with Harbor Freight. I ran an audit Carlson Lynch website on WAVE (checking for WCAG compliance) that shows that your website has “errors”. See the screen shot above. I shouldn’t have to remind you that law firms are specifically identified in the ADA as ” public accommodations” subject to the same rules you assert apply to retailers. Does the record of the prior “errors” on your website indicate that Carlson Lynch has a policy or practice of not maintaining an accessible website?
Please disclose the specific transactions that your client could not complete and provide screen shots of the code that created “barriers” for them so we can respond to your demand for your fees for this hypothetical plaintiff. You are also welcome to explain the WCAG errors and the even more extensive Section 508 errors on your website.
What Can We Even Say?
I’m rarely at a loss for words when discussing issues of accessibility, disability, the civil rights and other issues about which I write on this blog. Here, we have a law firm claiming to be representing people with disabilities who refuse to name which person with a disability is suing Harbor Freight, perhaps committing fraud by doing so but, more to the point, they are doing so while having accessibility problems on their own site. Thus, I recommend that Carlson/Lynch sue itself before it sues anyone else.
Another Telling Paragraph
The following appears on page 4 of the document Exhibit1.PDF in the .zip file. Unfortunately, that PDF is not accessible so, using an OCR tool, I made a Microsoft Word file and placed it into the Harbor Freight subfolder called Doc-Exhibit1.docx. The Word file is entirely readable but some of the formatting was lost in the transition.
Carlson/Lynch, in its opening letter to Harbor Freight says, “Before you incur significant cost by engaging outside experts of your own, we invite you to first contact us directly to explore a far more cost-effective and pragmatic approach to resolving these issues. We have already conducted a preliminary investigation working with prominent national experts and determined that your website has significant failures which limit accessibility for individuals with various disabilities. In addition, it is also our understanding that most (if not all) of the most reputable national experts are back-logged as a result of our clients’ web accessibility efforts. This fact does not in any way prevent a resolution of our claims in the short term…”
So, we see that Carlson/Lynch is claiming to have used “prominent accessibility experts” but refuses to name which. But, more insidiously, they concede that virtually every “reputable national expert” has a backlog of work because of its lawsuit tactics while saying that the lack of availability of the top companies is no excuse for not immediately conceding to their demands. So, what is the “cost effective” solution proposed by Carlson/Lynch? We don’t know as that’s not stated anywhere in any of the cases one can find on Pacer but it’s certainly not a “most reputable” company as they’re all jammed up helping other victims of Carlson/Lynch lawsuits and threats thereof.
I don’t know about you, my loyal readers but this combination of ambiguity, the thug-like offer of a “more cost effective solution” and an admission that all of the reputable contractors are already working on other defendants in Carlson/Lynch legal attacks smells really bad.
I’m even more convinced that Carlson/Lynch is nothing more than a trolling service. They file suits based on the result of bots, offer no explicit plan to remediation nor do they even mention a single person with a disability as a plaintiff in the demand letters they send to unsuspecting companies. They include references to Section 508 in cases where the defendants are not governmental agencies nor government contractors. I am entirely certain that they are just trying to shake down otherwise decent businesses and, as you can read in the “Something You Can Do” article I published last week, they are demanding 8000% as much money as they seek for compensation for the plaintiffs they do name when they actually file a suit.
Stay tuned to this blog for more as it happens. Yesterday, I learned of another suit having been filed and will pull it down from Pacer some time in the next few days to see what we can learn from the one.
Please, as I recommend in “Something You Can Do,” file an objection with the courts in as many of these cases as possible. Let’s stand together or we’ll hang separately.