Happy Sunday!
I hope you had a relaxing weekend, or maybe you’re sitting at your desk now. In either case, I hope you have a cold beverage ready to drink and you’re sitting comfortably. Today’s email is going to be more of a helpful read, and probably one you want to send around so everyone is aware of how to avoid the frivolous ADA lawsuits from ambulance-chasing attorneys.
But before we get to that, did you snag a ticket for the Q4 Summit, happening in NYC on September 26th? We have an incredible lineup of speakers, including:
- Harley Finklestein, President of Shopify
- Sandra Campos, former CEO of Diane von Furstenberg, now CEO of PetMeds ($PETS on NASDAQ)
- Danny Winer, co-founder and CEO of HexClad
- Stuart Leitch, former CEO of GXVE (Gwen Stefani beauty brand), CRO of Olaplex, now CEO of Skinfix
- Justin and Philippe, co-founders of Refinery29
- Kat Hantas, co-founder of 21 Seeds (sold to Diageo)
- Keith Rabois, billionaire tech investor & founder of OpenStore
- Ari Murray & Carly Lieberman, Chief Growth Officer at Sharma Brands and Creative Director at Sharma Brands
- Ryan Babenzien, co-founder and CEO of Jolie
And so many more…
Apply for a ticket on the Q4 Summit website — we’re days away from September 26th!
Vendor of the Week
My friends at Recharge are giving away nearly $1 million in prizes for their Tomorrow Brand Challenge, which is happening right now.
If you are currently a Recharge customer, you can participate. If not, you just need to sign up to be considered.
Long story short, they are going to be giving out some epic prizes to several winners who acquire the most subscribers via Recharge and keep them the longest in Q3 & Q4. These winners will take home $$$ + some unforgettable experiences, including:
- $100K in cold hard cash
- $50K in funding towards your 2025 big marketing bet
- A team retreat of your choice (up to $50K)
- OR a bucket list trip for two to the big race in Monza, Italy!
Here are the contest rules to join.
In short, I love it when brands do marketing initiatives like this, as it makes using the product even more fun. For those who don’t know, Recharge is trusted by over 20,000 brands to power their subscription programs, unlock new insights, and retain more customers and subscribers than ever before.
Their software has helped tens of thousands of brands manage over 100 million subscribers while processing over $20 billion in payments through their tools. We have many clients at Sharma Brands who have been using Recharge for years, and I know many of the top brands love and use them.
Check out the Tomorrow Brand Challenge contest tomorrow and enter it to win the prizes I mentioned above HERE.
40 Tactical CRO Tips
Did you listen to this week’s Limited Supply episode? I spent 47 minutes reviewing 40 easily actionable CRO tips to make you at least $100,000. Listen to it, take notes, and take action to raise your conversion rate. Listen on Apple or Spotify.
How to handle ADA Lawsuits
This past week, one of my clients pinged me on Slack and mentioned they got served an ADA lawsuit. Unfortunately, it’s not atypical for our clients to get or for those who work in eCommerce. Ambulance-chasing attorneys will find someone who self-identifies as “legally blind” and send hundreds of lawsuits out at once. As I was sending my client a link to Nick Pujji’s profile, the lawyer who has handled the most lawsuits like this, I had an idea…
I grew up in San Diego, next door to Nick’s sister-in-law’s parent’s house. This meant I got to grow up alongside 3 brilliant humans: Vinny Pujji (who started Left Lane Capital), Jesse Pujji (who started Ampush, Growth Assistant, etc), and Nick Pujji (youngest partner at Dentons, one of the best law firms in the world). So as I was sending his link, I thought, “What the f**k can we do about this problem?” I texted Nick and asked him a ton of questions for my newsletter, and he said he was game for it.
Nick is one of the youngest full equity partners at Dentons, the largest law firm in the world. He said that he thinks he has probably worked on more ADA cases than anyone in the US. He has helped over 1,000 clients with audits, questions, and issues related to the topics I’ll discuss below and Nick is probably the smartest person in the world when it comes to this stuff today. We had a 30 minute call about various aspects of the law related to eCommerce companies and I wanted to share some of the nuggets with you all here.
Also, a quick disclaimer. This email is for informational purposes only and doesn’t constitute legal advice. If you have questions, just talk to Nick Pujji or consult your own attorney for specific advice.
Anyway, my hope is that this email saves you a ton of time and headache as you navigate building your brand. Let’s dive in…
What is the ADA?
To put it simply, the ADA is the Americans with Disabilities Act, which was designed to protect individuals with disabilities from discrimination in various areas of life, including public access to businesses, services, and what they call “digital spaces,” aka your apps and websites.
The ADA is important for marketers and DTC companies because it affects how they engage with their audience online through digital channels. Although the ADA does not provide specific website technical guidelines, most legal experts and courts reference the Web Content Accessibility Guidelines (WCAG) as the standard for ADA compliance online.
No matter what business you’re in, if you own and operate a website, these are just a tiny sample of the things that you could get in trouble for as it relates to WCAG and ADA violations:
- You don’t have alternative text (alt text) for images: some users may need descriptive text to convey the meaning of images.
- You have poor color contrast: Having low contrast between text and background might make it difficult for visually impaired users to read content.
- No keyboard navigation: Users who rely on keyboard navigation (rather than a mouse) may find your site unusable if it’s not keyboard accessible.
- Non-descriptive link text: Links labeled "click here" or "read more" don't convey enough context for impaired screen reader users.
- Missing form labels: Input fields without clear labels make it difficult for assistive technologies to identify form purposes.
- Uncaptioned videos: Without captions, users with hearing impairments cannot access your video content.
- No text transcripts for audio: Audio files should be accompanied by transcripts for users with hearing disabilities.
- Complex navigation structure: Overly complicated menus and site structures can be hard for users with cognitive disabilities to navigate.
- Inaccessible PDFs: PDFs without proper tagging or structure are not readable by screen readers.
- Non-resizable text: Users should be able to resize text without breaking the site layout or functionality.
- Time-sensitive content: Content that disappears or changes too quickly might be inaccessible to users with disabilities.
- Missing "skip navigation" links: These allow screen reader users to bypass repetitive navigation links and go straight to the main content.
- Pop-ups without proper focus management: Pop-ups can cause confusion if focus isn’t managed correctly.
- Autoplaying multimedia without controls: Autoplaying audio or video can interfere with assistive technologies and be disruptive.
- Poor mobile accessibility: Mobile sites that do not respond properly to assistive technologies (e.g., screen readers, zoom features) can be a violation.
- Captcha without an alternative: Visual Captchas without an accessible alternative can block users with disabilities from completing forms.
And more.
Now if you looked at this list, you would say that almost every website on the internet violates one or more of these guidelines which is why it’s so difficult to make sure that you are compliant.
But these guidelines do exist for a reason. The goal is to make your site accessible to anyone, and you should always do your best to follow the WCAG guidelines where you can.
Who Receives ADA Lawsuits/Demand Letters?
The main issue is that there are groups of law firms that take advantage of how broad these guidelines are to sue brands at scale.
This is just my opinion, and I don’t know for sure, but from my experience and from the companies and lawyers that I’ve talked to who deal with ADA compliance issues, it basically sounds like several groups of lawyers cold-email hundreds or even thousands of agencies and brands each year alleging ADA violations, hoping that one or more will take the bait.
They implement this strategy at scale and try to find brands willing to settle and pay outside of court. So, what should you do if you receive a cold email alleging that you violated ADA rules?
- Talk to your general counsel or talk to Nick Pujji.
- Don’t respond until they actually sue you.
The unfortunate thing about the US legal system is that anyone can sue anyone for anything, and there is nothing that you can do to stop them. That said, these law firms usually don’t actually sue you. They start by sending threatening emails to hundreds of brands, hoping that someone responds and is willing to pay.
You should not respond until they actually file a formal lawsuit (which costs them money and time). If you do actually get sued, you should immediately seek legal help.
As with anything related to the law, every situation and case is unique, so before you take any action, it really depends on what they are alleging is wrong with your website or how you are conducting business on digital channels.
Nine times out of 10, the law groups will eventually give up if you don’t respond, but some have ample capital and will sue you anyway because they are willing to eat the expenses to take more shots on goal.
How costly is this to brands?
Most of the time, these law firms simply want a quick settlement of anywhere between $5-25K. It’s pretty pathetic of them, but just think about it: this is their business model.
Like brands send out cold email campaigns to sell services, they send out cold email campaigns to thousands of website owners alleging ADA violations. Since the ADA guidelines are so broad, almost everyone violates one or more of these claims.
From my understanding, it is all a marketing funnel to them and they track metrics around outreach and conversion rates just like any other business would. They hope to cast a wide net and email thousands of brands per year hoping that 5% actually convert and pay. Even if you only have a few % conversion rate, they can still make more than enough.
The Biggest Problem With ADA Lawsuits:
IMO, the biggest problem with ADA lawsuits related to websites are that they are extremely hard to prove, and very difficult to fight.
First of all, fighting one of these cases will often cost significantly more than trying to settle outside of court, and these law firms know that. A top lawyer in New York or California will charge upwards of $500-$1000/hour. Just trying to fight will cost you tens of thousands in legal fees and a ton of headache and time.
This is why they aim for $5-25K settlements because it’s below what you would spend to defend yourself.
Secondly, it’s tough to prove that you were or weren’t compliant or that the violation did or did not cause material damage to the end user. Remember, the ADA does not have hard technical guidelines for what does and doesn't comply. They have many soft rules and a lot of things are subject to interpretation by a judge.
Also, the complaints themselves are fairly subjective. For example, someone could say that the lack of contrast or captioning caused material harm to their life and that you somehow owe them money for this. Again, this is very hard to prove, and it’s all just someone’s opinion of what did or didn’t cause them harm.
So for now, most brands settle, and just pay.
How can brands protect themselves?
Although there is no bulletproof way to protect yourself, here are some basic principles you should follow.
- You should audit your digital profiles and review the WCAG guidelines to ensure that you are as compliant as possible.
- You should do automated and manual testing and document this process quarterly to ensure you are taking all proactive measures possible to comply with the ADA and WCAG guidelines.
- You should talk to legal counsel about audits, advice, and other tools that can help you achieve the best legal standing possible and remain compliant.
Do software tools work to automate this for me?
As you may have heard, various software tools claim to help you stay compliant. Accessibe is one of them, and it is very popular.
According to Nick, however, more is needed. Unfortunately, the legal system doesn’t recognize any specific tool as 100% bulletproof when it comes to compliance, so you should always mix automated and manual audits and testing.
Secondly, another unfortunate thing is that some of these law firms might even be using tools like BuiltWith to see who is using ADA compliance software like Accessibe and other tools and then they use that info to directly target them for these lawsuits. So sometimes using these tools can be a double-edged sword.
Again, this is just speculation, but certain lawyers have shared that perspective with me.
What other areas of the law exist like this?
There are many other legal gray areas that various law groups try to exploit.
- Things like privacy and GDPR claims.
- Copyright claims
- Patent Troll claims
- Environmental compliance claims.
- Food and beverage labeling claims, etc.
The list goes on, and many of these areas are very broad, so it’s difficult to comply fully. Local laws in various states also go above and beyond the ADA and WCAG guidelines. For example, New York and California have even more strict versions of these laws.
This is a challenging topic to write about, but I don’t see many others discussing it, so I thought it would be helpful to share. Most brands don’t even realize this is happening, so hopefully, this will make you more aware.
Ending on a Positive Note
On Thursday, I saw a perfectly timed tweet from Eric Bandholz saying they got sued for $75k over an ADA website claim. He didn't give in and didn't settle. And he won! As Moiz said, Eric is the hero we need, not the hero we deserve.
Fighting takes serious guts, and I commend him for seeing this through. In the comments, he said this case took over one year to fight and win. What a drain on his otherwise productive time and money building his brand! IMO, we should not have predatory law groups taking advantage of brands over difficult-to-fight and often frivolous claims.
As I mentioned at the top, Nick said he’d be happy to do audits, share their playbooks for compliance, and teach teams about the various tools for both automated and manual audits and testing to keep them up to date.
If you want his help, just email NickPujji@Dentons.com, and he will take care of you. I highly recommend hiring his firm for website audits (a couple thousand dollars) and to defend you in any case (a couple thousand dollars).
Next week, we’ll be back with more positive tips, tactics, and strategies for marketing, business, and DTC.
I hope you found this interesting and helpful. I wasn’t sure if I was going to publish it but I personally think it’s important and something that more brands should be aware of and keep in mind. I hope it helps you and your team be better prepared to protect yourself going forward.
Now, let’s all get back to the real work of building great businesses and brands.
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That's all for this week
That’s all for today’s newsletter. While it wasn’t super tactical like usual, I hope that taking lessons from the best lawyer in the country is helpful to your site. I highly recommend contacting Nick for a complete ADA website audit/consultation — that $3k audit will save you $10-30k.
Tonight is Sunday night, so I hope you’ll get 9 hours of sleep as you roll into a fresh week. I’m going to be getting everything finalized and touched up for the Q4 Summit. If you have any questions about the Q4 Summit, reply to this email or email Marissa (marissa@ecomfounders.com).
Have a fantastic week. See you next Sunday!