In January 2025, the Federal Trade Commission (FTC) announced a complaint and proposed order requiring software provider accessiBe to pay $1 million to settle allegations that it misrepresented the ability of its AI-powered web accessibility tool to make any website compliant with the Web Content Accessibility Guidelines (WCAG) for people with disabilities.

This move by the FTC compels us to urge all clients to review and assess their websites, make adjustments as appropriate, and consult with us as needed.  Even though the FTC’s allegations alone do not result fault or liability, the plaintiff’s bar seems likely to target websites which rely on accessiBe’s accessibility widget based on this recent action by the FTC.

Back Up…How Did We Get Here?

Improving access for disabled persons is an important part of evolving our society.  Full stop.  Well, almost.

Business owners, developers, and thought leaders everywhere recognize the importance of improving access for the disabled.  It makes economic sense:  lower counter heights, ramps, standardized door handles, etc., all help facilitate access to your business by potential customers.  It makes practical sense:  businesses want to serve as many customers as possible and any restriction is a constraint on commerce.  It makes sense for society to the extent it improves the quality of life for a significant population.

But across California, businesses have been hamstrung by lawsuits brought under the Americans with Disabilities Act (ADA) and its state corollary, the Unruh Act.  Although claims brought under the ADA, alone, provide for injunctive relief only (i.e., an order requiring a business to fix the issue) claims brought under the Unruh Act in California provide for statutory damages of $4000 and attorneys’ fees, making them attractive lawsuits for plaintiffs. In 2023 California accounted for nearly 25% of all of the filed ADA cases in the entire United States.

Our firm routinely handles the defense of such matters on behalf of our retail clientele.  Prior to 2020, most if not all of those cases involved a “construction barrier,” or a physical impediment to access in a place of public accommodation.  Think: a sloped parking lot which compromises the ability to navigate a wheelchair, or a round hard-to-grip doorknob as opposed to an effortless levered handle.

With COVID-era lockdowns and on the heels of some important precedent, we saw a dramatic increase in cases involving blind or low-sighted plaintiffs suing to redress accessibility issues in the retail/e-commerce space, targeting websites which fail to integrate with screen reading software.  On August 21, 2020, we published “Is your Website ADA Compliant? If not, you may be the subject of a lawsuit” on our blog and within our periodic newsletter available at www.kvklawyers.com.

That article goes into detail on California’s Unruh Act, the precedent which led to website cases, Web Content Accessibility Guidelines (WCAG), and other important subjects which are beyond the scope here.  There, we described steps that businesses and their owners could take in collaboration with web-developers to make their websites accessible.

Several companies offer quick solutions, for a modest fee, through a line or two of code which adds a proprietary widget to the website and enhances accessibility.

Today, we are writing to provide notice that one of those tech-leaders, “accessiBe,” is under fire.

The Allegations

From the FTC’s website:

“According to the complaint, despite the company’s claims, accessWidget did not make all user websites WCAG-compliant and these claims were therefore false, misleading, or unsubstantiated, in violation of the FTC Act. In addition, the complaint alleges that accessiBe deceptively formatted third-party articles and reviews to appear as if they were independent opinions by impartial authors and failed to disclose the company’s material connections to the supposedly objective reviewers.” (https://www.ftc.gov/news-events/news/press-releases/2025/01/ftc-order-requires-online-marketer-pay-1-million-deceptive-claims-its-ai-product-could-make-websites).

A proposed order, to which accessiBe has been asked to consent would not admit fault or liability but, rather, would constitute an agreement to refrain from making certain statements about its capabilities, provide disclosures, and pay $1,000,000.

Without judging whether or not the allegations are true, the consent order is almost certain to serve as a beacon to ADA plaintiffs’ attorneys who will likely increase litigation and specifically target websites which rely exclusively on accessiBe.

The Silver Lining

Like most software, accessibility software is a tool in the toolbelt of a proprietor and can be complemented by other tools and consultants.  Using accessibe’s software does not necessarily mean that your website is not-compliant, especially if you have also been undertaking your own audits or using it as part of a well-rounded approach to accessibility with your web-developer.

Take Action

This move by the FTC compels us to urge all clients to review and assess their websites, make adjustments as appropriate, and consult with us as needed.  The plaintiff’s bar seems likely to target websites which rely on accessiBe’s accessibility widget based on this recent action by the FTC.

By:  GianDominic Vitiello, February 6, 2025.