Congratulations to The Motley Fool! Posted here is the digital accessibility settlement agreement The Motley Fool reached with blind investors. The agreement is designed to ensure that the company’s award-winning website, mobile application and emails are available to people with and without disabilities. The Motley Fool participated in Structured Negotiation — no lawsuit was needed or filed. The Law Office of Lainey Feingold and Linda Dardarian of the Oakland civil rights firm Goldstein, Borgen, Dardarian & Ho represented the blind investors.
- Read The Motley Fool Accessibility press release
- Visit the new Motley Fool Accessibility Information Page
- Jump to a Simplified Summary of this Document, a feature of LFLegal.com designed to meet WCAG Success Criteria 3.1.5 (a WCAG 2.0 AAA Reading Level requirement).
This Settlement Agreement (“Agreement”) is entered into by and between Thomas Foley and Adrian Spratt (collectively referred to as “Claimants”) and The Motley Fool, LLC (“The Motley Fool”) for the purposes and on the terms specified herein and operates in conjunction with the Confidential Addendum to this Agreement. Together Foley, Spratt and The Motley Fool are referred to herein as the Parties.
This Agreement is based on the following facts:
- Thomas Foley is a resident of California, a Person with a Visual Impairment, and a person with a disability within the meaning of the Americans with Disabilities Act and the laws of the State of California. Claimant Foley has been a member of The Motley Fool since 2008 and has a paid subscription with the company.
- Claimant Adrian Spratt is a resident of New York, a Person with a Visual Impairment, and a person with a disability within the meaning of the Americans with Disabilities Act and the laws of the State of New York. Claimant Spratt has been a member of The Motley Fool since 2005 and has several paid subscriptions with the company.
- The Motley Fool maintains one website and a mobile application, and sends information through email for the convenience of the general public and its members.
- A dispute has arisen between Claimants and The Motley Fool concerning whether The Motley Fool is adequately ensuring that its website, mobile application and email as defined below, are accessible to Persons with Visual Impairments (“Accessible Information Dispute” or “the Dispute”).
- On or about February 6, 2015, Claimants notified The Motley Fool about the Dispute and offered to engage in Structured Negotiation, in lieu of litigation, to resolve the Dispute. In April 2015, the Parties executed a Structured Negotiations Agreement to protect the interests of all Parties during those negotiations. Since executing that agreement, the Parties have engaged in good faith negotiations and shared relevant information regarding the Dispute. The Parties now enter into this Agreement to resolve the Dispute and to avoid the burden, expense, and risk of potential litigation.
- By entering into this Agreement, The Motley Fool does not admit, and specifically denies, that it has violated or failed to comply with any provisions of the ADA, any applicable laws of any state relating to accessibility for Persons with Visual Impairments, any regulations or guidelines promulgated pursuant to those statutes, or any other applicable laws, regulations, or legal requirements. Neither this Agreement, nor any of its Exhibits, Addenda, terms or provisions, nor any of the negotiations connected with it, shall be construed as an admission or concession by The Motley Fool of any such violation or failure to comply with any applicable law. Neither this Agreement and its terms and provisions, including these Recitals, nor the Confidential Addendum shall be offered or received as evidence for any purpose whatsoever against The Motley Fool in any action or proceeding, other than a proceeding to enforce the terms of this Agreement and the Confidential Addendum executed herewith.
NOW, THEREFORE, the Parties hereby agree to the following provisions:
As used in this Agreement, the following terms shall be as defined below:
- Accessible Motley Fool Media Player(s) means any media player that satisfies the Access Standard as set forth in Sections 3.1 and 3.2 and is available on The Motley Fool Website and Mobile Application.
- Accessible PDF means a PDF document that satisfies WCAG 2.0. Conformance Level AA Success Criteria.
- Claimants’ Counsel means Goldstein, Borgen, Dardarian & Ho and the Law Office of Lainey Feingold, and the attorneys practicing law therein.
- Customer Service Telephone means the customer service telephone numbers The Motley Fool makes available to The Motley Fool Members and members of the public.
- Effective Date means December 1, 2016.
- Evergreen Content means content on The Motley Fool Website or Mobile Application that is educational or instructional in nature and is not time-sensitive.
- Person(s) with a Visual Impairment means any person who has a physical, mental or sensory impairment that substantially limits him or her in the major life activity of seeing.
- Third-Party Content means web content that is generated by a third party and not owned or coded by The Motley Fool.
- The Motley Fool Application(s) for Mobile Devices (or “The Motley For Mobile App(s)”) means mobile applications published by The Motley Fool for The Motley Fool Members or the general public.
- The Motley Fool Emails means emails that The Motley Fool sends to The Motley Fool Members and/or members of the general public. Attachments or content linked to in an email is not an “email” or “The Motley Fool Email(s).”
- The Motley Fool Members means any individual that has provided the Motley Fool with a valid email address and/or purchased a premium product from the Motley Fool within the prior eighteen months or has otherwise not cancelled their membership.
- The Motley Fool Websites means the websites (including pages only available to The Motley Fool Members) at http://fool.com.
- Undue Burden means significant difficulty or expense. In determining whether an action would result in an undue burden, factors to be considered, include those set forth in 28 C.F.R. section 36.104, part III-4.3600 of the ADA Title III Technical Assistance Manual, and any other regulations/interpretive guidance issued by or on behalf of the United States Department of Justice or precedential published opinions of relevant federal courts applying those factors.
2. Duration of Agreement.
This Agreement shall remain in effect from the Effective Date through December 31, 2017.
3. Website Accessibility Provisions.
- Subject to the provisions of Sections 3.5 and 5, The Motley Fool has used and will continue to use best efforts to ensure that The Motley Fool Website, including the Scorecard, substantially complies with the Web Content Accessibility Guidelines (WCAG) 2.0, Conformance Level AA Success Criteria (“Access Standard”) no later than December 31, 2016. The Parties acknowledge that some WCAG Conformance Level A and AA Success Criteria address features or design elements that may not be used on The Motley Fool Website, and in such circumstances compliance with those Success Criteria will not be required.
- Accessible Motley Fool Media Players. By no later than December 31, 2016, all media players on The Motley Fool Website that are hosted and maintained by the Motley Fool shall be Accessible Motley Fool Media Players. Throughout the Structured Negotiation, The Motley Fool has worked with its third party vendors that provide video players to ensure that those players meet the Access Standard as set forth in Section 3.1. The Motley Fool shall continue to make good faith efforts to work with video player vendors to ensure that the Access Standard is maintained on all Motley Fool Media Players on the Motley Fool Website.
- CAPTCHA. The Motley Fool currently does not use any Completely Automated Public Turing Test to Tell Computers and Humans Apart or similar visual or textual Turing or reverse-Turing verification test (referred to herein as “CAPTCHA”). If any CAPTCHA is used on The Motley Fool Website, The Motley Fool will incorporate alternative security measures that are usable by Persons with Visual Impairments.
- Third-Party Content. The Motley Fool obligations under this Settlement Agreement with respect to Third-Party Content are the following:
- Testing and Communications with Third Party Vendors. Subject to Section 3.4.4, periodically throughout the Duration of the Agreement, The Motley Fool will test Third-Party Content on The Motley Fool Website to determine if it meets the Access Standard. Where The Motley Fool finds content that does not satisfy the Access Standard, or where Claimants notify The Motley Fool of such content, within thirty (30) days The Motley Fool will request in writing that the particular third party(ies) supplying that web content to The Motley Fool bring their content into conformance with the Access Standard. The Motley Fool will request that the vendors provide a written response within thirty (30) days.
- Subject to Section 3.4.4, if The Motley Fool is notified that a third party vendor will not bring its content into conformance with the Access Standard, The Motley Fool will use good faith efforts to find an alternative vendor that provides the content in compliance with the Access Standard, subject to The Motley Fool’s existing contractual obligations to the third party vendor.
- New Third-Party Content After the Effective Date. If, on or after the Effective Date, The Motley Fool issues requests for proposals for development or inclusion of Third-Party Content on The Motley Fool Website, or if The Motley Fool extends contracts for Third-Party Content existing as of the Effective Date, The Motley Fool will use good faith efforts to select Third-Party vendors who can meet the Access Standard, in addition to other criteria in the request for proposals and vendor contracts.
- Nothing in this Agreement requires The Motley Fool to violate any confidentiality or non-disclosure agreements for any purpose or to terminate or breach an existing third party vendor contract.
- Content on The Motley Fool Website.
- All content newly posted on The Motley Fool Website on or after the Effective Date will satisfy the Access Standard as of the date it is posted. All PDFs newly posted on The Motley Fool Website on or after the Effective Date will be Accessible PDFs, or the same content will be posted in a format that meets the Access Standard.
- The Evergreen Content on The Motley Fool Website that is listed in Exhibit A will satisfy the Access Standard as of December 31, 2016. Unless specifically listed in Exhibit A, the Motley Fool has no obligation to make such Evergreen Content Accessible except as provided in Section 3.5.3.
- Upon reasonable request by a Person with a Visual Impairment, The Motley Fool will use reasonable efforts to remediate any content that does not meet the Access Standard and was posted prior to the Effective Date. Such remediated content will meet the Access Standard and will be provided within ten days after any such reasonable request.
4. Mobile Application Accessibility Provisions.
- Subject to Section 5 of this Agreement, The Motley Fool will use best efforts to ensure that any The Motley Fool Applications for Mobile Devices substantially comply with the Access Standard by no later than December 31, 2016. The Parties recognize that some WCAG 2.0 Level A and AA Success Criteria address features or design elements that may not be used on The Motley Fool Applications for Mobile Devices and in such circumstances compliance with those Success Criteria is not required. The Parties also recognize that the accessibility of features used on The Motley Fool Applications for Mobile Devices are dependent on the operating systems of third parties, over which The Motley Fool has no control.
- In meeting the Access Standard as set forth above, The Motley Fool will use good faith efforts to ensure that its mobile developers and vendors are familiar with the following resources and: (i) Mobile Accessibility Standards and Guidelines from the BBC at http://www.bbc.co.uk/guidelines/futuremedia/accessibility/mobile_access.shtml; (ii) Apple’s Accessibility for Developer resources at https://developer.apple.com/accessibility/; (iii) Android Accessibility resources at https://developer.android.com/guide/topics/ui/accessibility/index.html; and (iv) Information from the Web Accessibility Initiative on mobile accessibility: https://www.w3.org/TR/mobile-accessibility- mapping/
- Accessible Motley Fool Media Players for Mobile Devices. By no later than December 31 2016, all media players hosted and maintained on The Motley Fool Mobile Applications shall be Accessible Motley Fool Media Players. Throughout the Structured Negotiation, The Motley Fool has worked with its third party vendors that provide mobile applications to ensure that those players meet the Access Standard as set forth in Section 3.1. The Motley Fool shall continue to make good faith efforts to work with mobile application vendors to ensure that the Access Standard is maintained on all Motley Fool Media Players for Mobile Devices.
5. Undue Burden.
Nothing in Section 3 or 4 shall require The Motley Fool to undertake any action that would constitute an Undue Burden. If The Motley Fool believes that compliance with any provision of Sections 3 or 4 would constitute an Undue Burden, it will notify Claimants and the Parties will discuss the matter. Any disagreements about the applicability of Undue Burden under this Agreement will be handled as a dispute under Section 12.
6. Email Accessibility Provision.
By no later than December 31, 2016, The Motley Fool will use best efforts to ensure that all The Motley Fool Emails substantially comply with the Access Standard. As of that date, any email attachment created by The Motley Fool will meet the Access Standard. All content linked within The Motley Fool Emails directing users to The Motley Fool Website will meet the requirements of this Agreement.
7. Miscellaneous Digital Accessibility Provisions.
- Digital Accessibility Policy.
- No later than December 31, 2016, The Motley Fool will develop and implement an internal website and mobile accessibility policy (“Digital Accessibility Policy”) that, at a minimum, will include: (i) a statement of the Access Standard and The Motley Fool’s commitment to use it; (ii) identification of the Digital Accessibility Coordinator designated pursuant to Section 7.4; and (iii) methods by which The Motley Fool Members and the general public can report web and mobile accessibility and usability feedback and the process for addressing the feedback. The Motley Fool will provide Claimants with a draft of the Digital Accessibility Policy prior to its being finalized. Claimants will provide their feedback on this draft policy within fifteen (15) days of receipt, and The Motley Fool will consider the feedback provided by Claimants in good faith.
- The Motley Fool will make the Digital Accessibility Policy available to all employees, contractors, and Third Party Content providers who design, develop, maintain, or otherwise have responsibility for its websites, mobile applications, and email or who provide website or mobile content, technical support, or customer service, via its website.
- Digital Accessibility Expertise. Throughout the Duration of this Agreement, The Motley Fool will make good faith efforts to ensure that it has sufficient expertise to comply with the Access Standard.
- Usability Testing.
- Usability Testing of The Motley Fool Website.
- At least once before the date set forth in Section 3.1, The Motley Fool will provide Claimants an opportunity to give feedback to The Motley Fool about The Motley Fool Website, including but not limited to the Accessible Motley Fool Media Player and the features and functions of the Scorecard. Throughout the Duration of the Agreement, The Motley Fool will consider in good faith feedback from Claimants regarding the accessibility and usability of The Motley Fool Website.
- If during the Duration of the Agreement the Motley Fool creates or launches a new Scorecard, it will provide Claimants an opportunity to give feedback on the new Scorecard before it is made available to the general public. Any new Scorecard will be evaluated by an independent consultant jointly agreed to by the parties to ensure that it meets the Access Standard.
- Usability Testing of Proposed Alternatives to Visual Verifications. If, during the Duration of this Agreement, The Motley Fool plans to include a CAPTCHA on The Motley Fool Website, it will provide a method for Claimants to test the alternative security measure to ensure that it is usable by them prior to the inclusion of the CAPTCHA on The Motley Fool Website. If The Motley Fool plans to include a CAPTCHA, The Motley Fool will also ensure that the usability of any alternative security measure is tested by a cross-section of People with Visual Impairments using different types of devices, assistive technology, browsers, and operating systems, prior to the inclusion of the CAPTCHA on the Motley Fool Website.
- Usability Testing of Applications for Mobile Devices. The Motley Fool has provided Claimants an opportunity to give feedback about the accessibility and usability of The Motley Fool Application for Mobile Devices and will provide a similar opportunity if a new Motley Fool Application for Mobile Devices is released during the Duration of the Agreement. The Motley Fool has given and will continue to give good faith consideration to such feedback and will notify Claimants about its response.
- Digital Accessibility Coordinator. No later than December 31, 2016, The Motley Fool shall designate an employee as the Digital Accessibility Coordinator for The Motley Fool Website, Mobile Application, and The Motley Fool Emails. The Motley Fool shall provide Claimants with the name and contact information for that individual. The Digital Accessibility Coordinator shall be responsible for coordinating The Motley Fool’s compliance with the requirements of this Agreement and shall serve as a contact person for The Motley Fool employees, contractors and Third Party Content providers on accessibility issues relating to The Motley Fool Website, Mobile Application, and The Motley Fool Emails.
8. Accessibility Information on The Motley Fool Website and Mobile Applications.
- No later than December 31, 2016, The Motley Fool will post an Accessibility Information page on The Motley Fool Website and Mobile Applications. The page will include, at a minimum: (i) information regarding The Motley Fool’s efforts to meet the Access Standard on The Motley Fool Website, Applications and Email; (ii) tips for navigating the Scorecard; and (iiii) e-mail and telephone-based method for Persons with Visual Impairments to contact The Motley Fool regarding accessibility concerns.
- The Motley Fool will provide Claimants with a draft of the Accessibility Information page(s) prior to its/their being finalized. Claimants will provide their feedback on this information within fifteen (15) days of receipt, and The Motley Fool will consider the feedback provided by Claimants in good faith. The Accessibility Information Page(s) will, at a minimum, be available from a link on the footer of the home page of The Motley Fool Website and all pages where the footer appears. It will also be listed as a help topic on all The Motley Fool Website Help pages and will be available in an easily findable location on The Motley Fool Mobile Applications.
9. Meetings Regarding this Agreement.
On a mutually agreed upon date or dates during the Duration of this Agreement, the Parties will meet by telephone to discuss any issue concerning implementation of this Agreement.
10. Training of The Motley Fool Staff.
To ensure effective implementation of this Agreement, The Motley Fool will provide training to designated staff as set forth in this Section.
- Customer Service Staff Responding to Customers by Telephone or Email.
- No later than December 31, 2016, The Motley Fool will provide training on the following subjects to the Digital Accesibility Coordinator: (i) the types of assistive technology used by web and mobile device users who are Persons with Visual Impairments; (ii) the fact that many visually impaired computer users rely solely on a keyboard, and do not use a mouse, to navigate a website; (iii) the existence and content of the Accessibility Information Page; (iv) the existence and content of The Motley Fool Digital Accessibility Policy; and (v) internal Motley Fool procedures for addressing web and mobile accessibility feedback and reporting, logging and resolving accessibility barriers pursuant to the policy adopted pursuant to Section 7.1.
- No later than December 31, 2016, The Motley Fool will develop an internal procedure to ensure that individuals who answer customer calls and receive customer emails, or who provide information concerning website and mobile support to the public are advised about (i) how to recognize accessibility issues that need escalation to the Digital Accessibility Coordinator; and (ii) how to direct all issues concerning accessibility to the Digital Accessibility Coordinator to coordinate resolution.
- The Motley Fool will notify a customer within two business days when an issue has been directed to the Digital Accessibility Coordinator, and will provide contact information for the Digital Accessibility Coordinator.
11. Change of Law or Regulation.
If during the Duration of the Agreement new laws or regulations are adopted that impact The Motley Fool’s obligations to make digital content accessible to People with Visual Impairments, the Parties agree that Claimants will not seek changes to this Agreement based on those new laws or regulations. The Parties further agree that the Motley Fool will not be in violation of the terms of this Agreement as a result of a change in the laws, regulations, WCAG 2.0 AA, and standards that occur after the date of this Agreement.
12. Procedures in the Event of Disputes.
- Notice of Non-Compliance. If a Party believes that any other Party has not complied with any provision of this Agreement, that Party shall provide the other Party with Notice of Non-Compliance containing the following information: (i) the alleged act of non-compliance; (ii) a reference to the specific provision(s) of the Settlement Agreement or Confidential Addendum that are involved; (iii) a statement of the remedial action sought by the initiating party; and (iv) a brief statement of the specific facts, circumstances and legal argument supporting the position of the initiating Party.
- Response. Within thirty (30) days of receipt of a Notice provided pursuant to Section 12.1, the non-initiating Party shall respond to the initiating Party in writing.
- Meet and Confer. Within two weeks after the response described above, the Parties shall informally meet and confer and attempt to resolve the issues raised in the Notice.
- Submission to Mediation. If the matters raised in a Notice provided pursuant to 12.1 are not resolved within forty-five (45) days of the initial meet and confer required by Section 12.3, either Party may submit the unresolved matters to nonbinding mediation before a mutually agreed upon mediator affiliated with Judicial Arbitration & Mediation Services (“JAMS”), or such other mediator as the Parties may jointly designate.
- Submission to Arbitration. If mediation fails to resolve the matter within ninety (90) days of the final mediation session (or such later date to which the Parties may agree), the Parties then will settle the matter finally by means of arbitration conducted by JAMS pursuant to its Streamlined Arbitration Rules and Procedures at a mutually convenient location. The award of the arbitrator will be enforceable in a court of competent jurisdiction.
- Notice or Communication to Parties. Any notice or communication required or permitted to be given to the Parties shall be given in writing by e-mail and by overnight express mail or United States first class mail, addressed as follows:
Linda M. Dardarian
c/o Goldstein, Borgen, Dardarian & Ho
300 Lakeside Drive, Suite 1000
Oakland, CA 94612
Lainey Feingold (by email only)
Law Office of Lainey Feingold
To: The Motley Fool:
Marthe LaRosiliere, Esq.
The Motley Fool
2000 Duke Street
Alexandria, VA 22341
CC: Matthew D. Berkowitz, Esq.
Carr Maloney P.C.
2020 K Street, NW, Suite 850
Washington, DC 20008
13. Publicity Regarding This Agreement and Its Terms.
The Parties will issue a joint press release on or about 20 days after the Effective Date. If the Parties cannot agree on a joint press release, either party may send their own press release, provided that (i) the content is consistent with this Agreement; and (ii) a copy of the release is provided to all Parties and their counsel at least three business days before it is sent to the press.
14. Agreement Binding on Assigns and Successors; No Third Party Beneficiaries.
- Assigns and Successors. This Agreement shall bind any assigns and successors of The Motley Fool. Within thirty (30) days of assignment or succession, The Motley Fool shall notify Claimants in writing of the existence, name, address and telephone number of any assigns or successors relating to the subject matters addressed herein.
- No Third Party Beneficiaries. This Agreement is for the benefit of the Parties hereto only and no other person or entity shall be entitled to rely hereon, receive any benefit herefrom, or enforce against either party any provision hereof. The Parties specifically intend that there be no third party beneficiaries to this Agreement.
15. Force Majeure.
The performance of The Motley Fool under this Agreement shall be excused during the period and to the extent that such performance is rendered impossible, impracticable or unduly burdensome due to acts of God, strikes or lockouts, unavailability of parts, equipment or materials through normal supply sources, security threat, or any other event of force majeure. If The Motley Fool seeks to invoke this Section as the result of an event of force majeure it shall notify Claimants in writing as soon as reasonably practicable, specifying the particular action(s) that could not be performed and the specific reason for non-performance. Claimants’ Counsel and The Motley Fool will thereafter meet and confer regarding an alternative schedule for completion of the action that could not be performed, or an alternative action. Any dispute regarding the applicability of this Section, or any future action to be taken, that remains after the meet and confer session will be handled as a dispute pursuant to Section 12 of this Agreement.
16. Recitals and Exhibits.
The terms of any Recital or any Exhibit attached hereto are fully incorporated into this Agreement and are an integral part thereof. The terms of this Agreement, where applicable, are fully incorporated into all Exhibits and are, where applicable, an integral part thereof. The use of the term “Agreement” herein includes any Exhibits.
17. Multiple Originals/Execution in Counterparts.
Each Party and Claimants’ Counsel shall sign one copy of this document and each such copy shall be considered an original. This document may be executed in counterparts and facsimile and PDF signatures shall be accepted as original.
[post image courtesy of Hassell Inclusion]