Purpose of the Template
When faced with a web accessibility complaint or demand letter, your team must decide whether to pursue a motion to dismiss, settle, or remediate. While a dismissal might seem appealing, it relies heavily on the judge's discretion. In 2024, some judges in the Southern District of New York dismissed cases based on the argument that online-only businesses aren't places of public accommodation under ADA Title III, and that "tester" plaintiffs hadn't shown concrete injury. However, these rulings don't bind other judges, and the Second Circuit hasn't definitively ruled on the issue.
This template provides a one-page decision memo comparing defense costs, settlement exposure, and remediation costs, along with a remediation evidence log. Use it to brief your counsel, finance, and executive sponsors, and to document your good faith efforts. This is a risk-structuring tool, not legal advice.
Prerequisites
Before completing the template, gather the following:
- The complaint or demand letter and the date you were served. Confirm your response deadline, typically 21 days in federal court.
- A written estimate from defense counsel for a motion to dismiss and an early settlement. Use actual figures from counsel.
- A current Conformance Testing result against WCAG (confirm with counsel which version applies; WCAG 2.1 AA and WCAG 2.2 AA are common).
- A list of any physical locations open to the public. This affects the "online-only" argument.
- Your prior claim history. Sites that remain inaccessible are often targeted again.
The Template
Copy the following into your document system.
ADA WEB LITIGATION DECISION MEMO
Matter: [Caption / demand letter reference]
Prepared by: [Name, title] Date: [ ]
Privileged and confidential: prepared Assistive Technology the direction of counsel [confirm with counsel before applying this label]
1. Procedural Status
- Date served: [ ]
- Response deadline: [ ]
- Court and assigned judge: [ ]
- Claims asserted: [ADA Title III / state law / city law]
2. Dismissal Viability Screen (Counsel Completes)
| Question | Answer | Notes |
|---|---|---|
| Is the business truly online-only, with no public-facing physical location? | Y / N | |
| Has the assigned judge ruled on whether websites are places of public accommodation? | Y / N / Unknown | |
| Does the complaint use generic, copy-and-paste allegations? | Y / N | |
| Does it name a specific product, a reason for choosing your site, and intent to return? | Y / N | |
| Are state or city claims pleaded alongside the federal claim? | Y / N | A federal dismissal may not end the matter |
3. Cost Comparison (Figures from Counsel Only)
| Path | Legal Fees | Payment to Plaintiff | Remediation Cost | Recurrence Risk |
|---|---|---|---|---|
| Motion to dismiss, then remediate | [ ] | [ ] | [ ] | [High / Med / Low] |
| Early settlement plus remediation | [ ] | [ ] | [ ] | [ ] |
| Remediate now, respond on the merits | [ ] | [ ] | [ ] | [ ] |
4. Decision
- Selected path: [ ]
- Rationale in two sentences: [ ]
- Remediation starts regardless of path: Yes / No. If No, state the reason: [ ]
5. Remediation Evidence Log
| Date | Issue Found | WCAG Success Criterion | Page/Component | Fix Applied | Verified By | Verification Method |
|---|
6. Sign-off Risk: [ ] Legal: [ ] Digital Owner: [ ] Executive Sponsor: [ ]
Customization Instructions
Section 2 is for counsel. The standing challenge depends on the specific complaint. A plaintiff who specifies a product and reason for choosing your site may meet the standing requirement, as seen in Sookul v. Fresh Clean Threads, where standing Web Accessibility Specialist found but dismissed on physical-location grounds. Ensure a lawyer handles this section.
Section 3 requires real comparisons. Defense attorneys often weigh fighting against resolving. Most settlements include a commitment to fix the site along with a payment. Fill all three rows with actual quotes to avoid bias toward litigation.
Section 4 emphasizes remediation. A dismissal resolves one lawsuit, but an inaccessible site remains a target. Document reasons if remediation is delayed.
Section 5 is your good-faith record. Keep it updated. Add columns for ticket numbers or vendor names if outsourcing. Map each issue to a WCAG success criterion for specificity. Reference your Accessibility Conformance Report if applicable.
Adapt the labels. Modify jurisdiction fields if you're outside New York. For multiple states, use one memo per matter, as laws vary by circuit.
Validation Steps
- Counsel Review. Have your defense attorney confirm Sections 1 and 2 before circulating the memo. Verify the privilege label with them.
- Number Provenance Check. Ensure every figure in Section 3 traces to a written quote or invoice. Remove any unsourced estimates.
- Conformance Re-test. After each remediation batch, re-run Conformance Testing. Automated scanning tracks progress but doesn't replace manual review or Screen Reader Testing with Assistive Technology. Log both in Section 5.
- Log Audit. Randomly select five entries to confirm each has a verifier, date, and method. Gaps undermine the good-faith narrative.
- Quarterly Refresh. Update Section 2 as case law evolves. Until the Second Circuit rules, judges' decisions will vary.
The memo won't predict your judge, but it shows executives that fixing the site is the most reliable strategy.
